§ 902. WE have now arrived, in the course of our inquiries, at the eighth
section of the first article of the constitution, which contains an enumeration
of the principal powers of legislation confided to congress. A consideration of
this most important subject will detain our attention for a considerable time;
as well, because of the variety of topics, which it embraces, as of the
controversies, and discussions, to which it has given rise. It has been, in the
past time, it is in the present time, and it will probably in all future time,
continue to be the debateable ground of the constitution, signalized, at once,
by the victories, and the defeats of the same parties. Here; the advocates of
state rights, and the friends of the Union will meet in hostile array. And here,
those, who have lost power, will maintain long and arduous struggles to regain
the public confidence, and those, who have secured power, will dispute every
position, which may be assumed for attack, either of their policy, or their
principles. Nor ought it at all to surprise us, if that, which has been true in
the political history of other nations, shall be true in regard to our own; that
the opposing parties shall occasionally be found to maintain the same system,
when in power, which they have obstinately resisted, when out of power. Without
supposing any insincerity or departure from principle in such cases, it will be
easily imagined, that a very different course of reasoning will force itself on
the minds of those, who are responsible for the measures of government, from
that, which the ardour

CH. XIV.] POWERS OF CONGRESS. 367

of opposition, and the jealousy of rivals, might well foster in those, who may
desire to defeat, what they have no interest to approve.

§ 903. The first clause of the eighth section is in the
following words: "The congress shall have power to lay and collect taxes,
duties, imposts, and excises, to pay the debts and provide for the common
defence, and general welfare of the United States; but all duties, imposts, and
excises, shall be uniform throughout the United States."

§ 904. Before proceeding to consider the nature and extent of
the power conferred by this clause, and the reasons, on which it is founded, it
seems necessary to settle the grammatical construction of the clause, and to
ascertain its true reading. Do the words, "to lay and collect taxes,
duties, imposts, and excises," constitute a distinct, substantial power;
and the words, "to pay debts and provide for the common defence, and
general welfare of the United States," constitute another distinct and
substantial power? Or are the latter words connected with the former, so as to
constitute a qualification upon them? This has been a topic of political
controversy; and has furnished abundant materials for popular declamation and
alarm. If the former be the true interpretation, then it is obvious, that under
colour of the generality of the words to "provide for the common defence
and general welfare," the government of the United States is, in reality, a
government of general and unlimited powers, notwithstanding the subsequent
enumeration of specific powers; if the latter be the true construction, then the
power of taxation only is given by the clause, and it is limited to objects of a
national character, "for the common defence and the general welfare."

§ 905. The former opinion has been maintained by some minds of great
ingenuity, and liberality of views.1 The latter has been the generally received
sense of the nation, and seems supported by reasoning at once solid and
impregnable. The reading, therefore, which will be maintained in these
commentaries, is that, which makes the latter words a qualification of the
former; and this will be best illustrated by supplying the words, which are
necessarily to be understood in this interpretation. They will then stand thus:
"The congress shall have power to lay and collect taxes, duties, imposts,
and excises, in order to pay the debts, and to provide for the common defence
and general welfare of the United States;" that is, for the purpose of
paying the public debts, and providing for the common defence and general
welfare of the United States. In

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1 See 2 Elliot's Debates, 327, 328. See Dane's App. §41, p 48; see also
1 Elliot's Debates, 93; Id 293; Id 300; 2 Wilson's Law Lect, 178, 180, 181; 4
Elliot's Debates, 224; 2 U. S. Law Journal, April, 1826, p 251, 264, 270 to 282.
This last work contains, in p 270 et seq. a very elaborate exposition of the
doctrine -- Mr. Jefferson has, upon more than one occasion, insisted, that this
was the federal doctrine, that is, the doctrine maintained by the federalists,
as a party; and that the other doctrine was that of the republicans, as a
party.* The assertion is incorrect; for the latter opinion was constantly
maintained by some of the most strenuous federalists at the time of the adoption
of the constitution, and has since been maintained by many of them.# It is
remarkable, that Mr. George Mason, one of the most decided opponents of the
constitution in the Virginia convention, held the opinion, that the clause, to
provide for the common defence and general welfare, was a substantive power. He
added, "That congress should have power to provide for the general welfare
of the Union, I grant. But I wish a clause in the constitution in respect to all
powers, which are not granted, that they are retained by the states; otherwise
the power of providing for the general welfare may be perverted to its
destruction"+

this sense, congress has not an unlimited power of taxation; but it is limited
to specific objects, -- the payment of the public debts, and providing for the
common defence and general welfare. A tax, therefore, laid by congress for
neither of these objects, would be unconstitutional, as an excess of its
legislative authority. In what manner this is to be ascertained, or decided,
will be considered hereafter. At present, the interpretation of the words only
is before us; and the reasoning, by which that already suggested has been
vindicated, will now be reviewed.

§ 906. The constitution was, from its very origin,
contemplated to be the frame of a national government, of special and enumerated
powers, and not of general and unlimited powers. This is apparent, as will be
presently seen, from the history of the proceedings of the convention, which
framed it; and it has formed the admitted basis of all legislative and judicial
reasoning upon it, ever since it was put into operation, by all, who have been
its open friends and advocates, as well as by all, who have been its enemies and
opponents. If the clause, "to pay the debts and provide for the common
defence and general welfare of the United States," is construed to be an
independent and substantive grant of power, it not only renders wholly
unimportant and unnecessary the subsequent enumeration of specific powers; but
it plainly extends far beyond them, and creates a general authority in congress
to pass all laws, which they may deem for the common defence or general
welfare.1 Under such circumstances, the constitution would practically create
an unlimited national government. The enumerated pow-

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1 President Monroe's Message, 4th May, 1822, p. 32, 33.

370 CONSTITUTION OF THE U. STATES. [BOOK III.

ers would tend to embarrassment and confusion; since they would only give rise
to doubts, as to the true extent of the general power, or of the enumerated
powers.

§ 907. One of the most common maxims of interpretation is, (as
has been already stated,) that, as an exception strengthens the force of a law
in cases not excepted, so enumeration weakens it in cases not enumerated. But,
how could it be applied with success to the interpretation of the constitution
of the United States, if the enumerated powers were neither exceptions from, nor
additions to, the general power to provide for the common defence and general
welfare? To give the enumeration of the specific powers any sensible place or
operation in the constitution, it is indispensable to construe them, as not
wholly and necessarily embraced in the general power. The common principles of
interpretation would seem to instruct us, that the different parts of the same
instrument ought to be so expounded, as to give meaning to every part, which
will bear it. Shall one part of the same sentence be excluded altogether from a
share in the meaning; and shall the more doubtful and indefinite terms be
retained in their full extent, and the clear and precise expressions be denied
any signification? For what purpose could the enumeration of particular powers
be inserted, if these and all others were meant to be included in the preceding
general power? Nothing is more natural or common, than first to use a general
phrase, and then to qualify it by a recital of particulars. But the idea of an
enumeration of particulars, which neither explain, nor qualify the general
meaning, and can have no other effect, than to confound and mislead, is an
absurdity, which no one ought to charge on the enlightened au-

CH. XIV.] POWERS OF CONGRESS--TAXES. 371

thors of the constitution.1 It would be to charge them either with
premeditated folly, or premeditated fraud.

§ 908. On the other hand, construing this clause in connexion
with, and as a part of the preceding clause, giving the power to lay taxes, it
becomes sensible and operative. It becomes a qualification of that clause, and
limits the taxing power to objects for the common defence or general welfare. It
then contains no grant of any power whatsoever; but it is a mere expression of
the ends and purposes to be effected by the preceding power of taxation.2

§ 909. An attempt has been sometimes made to treat this
clause, as distinct and independent, and yet as having no real significancy per
se, but (if it may be so said) as a mere prelude to the succeeding enumerated
powers. It is not improbable, that this mode of explanation has been suggested
by the fact, that in the revised draft of the constitution in the convention the
clause was separated from the preceding exactly in the same manner, as every
succeeding clause was, viz. by a semicolon, and a break in the paragraph; and
that it now stands, in some copies, and it is said, that it stands in the
official copy, with a semicolon interposed.3 But this circumstance will be
found of very little weight, when the origin of the clause, and its progress to
its

present state are traced in the proceedings of the convention. It will then
appear, that it was first introduced as an appendage to the power to lay taxes.1
But there is a fundamental objection to the interpretation thus attempted to
be maintained, which is, that it robs the clause of all efficacy and meaning. No
person has a right to assume, that any part of the constitution is useless, or
is without a meaning; and a fortiori no person has a right to rob any part of a
meaning, natural and appropriate to the language in the connexion, in which it
stands.2 Now, the words have such a natural and appropriate meaning, as a
qualification of the preceding clause to lay taxes. Why, then, should such a
meaning be rejected?

§ 910. It is no sufficient answer to say, that the clause
ought to be regarded, merely as containing "general terms, explained and
limited, by the subjoined specifications, and therefore requiring no critical
attention, or studied precaution;"3 because it is assuming the very
point in controversy, to assert, that the clause is connected with any
subsequent specifications. It is not said, to "provide for the common
defence, and general welfare, in manner following, viz.," which would be
the natural expression, to indicate such an intention. But it stands entirely
disconnected from every subsequent clause, both in sense and punctuation; and is
no more a part of them, than they are of the power to lay taxes. Besides; what
suitable application, in such a sense, would there be of the last clause in the
enumeration, viz., the clause "to make all laws, necessary and proper for
carrying into execution the fore-

going powers, &c.?" Surely, this clause is as applicable to the power
to lay taxes, as to any other; and no one would dream of its being a mere
specification, under the power to provide for the common defence, and general
welfare.

§ 911. It has been said in support of this construction, that
in the articles of confederation (art; 8) it is provided, that "all charges
of war, and all other expenses, that shall be incurred for the common defence,
or general welfare, and allowed by the United States in congress assembled,
shall be defrayed out of a common treasury, &c;" and that "the
similarity in the use of these same phrases in these two great federal charters
may well be considered, as rendering their meaning less liable to
misconstruction; because it will scarcely be said, that in the former they were
ever understood to be either a general grant or power, or to authorize the
requisition or application of money by the old congress to the common defence
and [or]1 general welfare, except in the cases afterwards enumerated, which
explained and limited their meaning; and if such was the limited meaning
attached to these phrases in the very instrument revised and remodelled by the
present constitution, it can never be supposed, that when copied into this
constitution, a different meaning, ought to be attached to them."2
Without stopping to consider, whether the constitution can in any just and
critical sense be deemed a revision and remodelling of the confederation,3 if
the argument here stated be of any value, it plainly estab-

___________________________________

1 "Or" is the word in the article. 2 Virginia Report and
Resolutions of 7 January, 1800. See also the Federalist, No. 41. 3 See the
Federalist. No. 40.

374 CONSTITUTION OF THE U. STATES [BOOK III.

lishes, that the words ought to be construed, as a qualification or limitation
of the power to lay taxes. By the confederation, all expenses incurred for the
common defence, or general welfare, are to be defrayed out of a common treasury,
to be supplied by requisitions upon the states. Instead of requisitions, the
constitution gives the right to the national government directly to lay taxes.
So, that the only difference in this view between the two clauses is, as to the
mode of obtaining the money, not as to the objects or purposes, to which it is
to be applied. If then the constitution were to be construed according to the
true bearing of this argument, it would read thus: congress shall have power to
lay taxes for "all charges of war, and all other expenses, that shall be
incurred for the common defence or general welfare." This plainly makes it
a qualification of the taxing power; and not an independent provision, or a
general index to the succeeding specifications of power. There is not, however,
any solid ground, upon which it can be for a moment maintained, that the
language of the constitution is to be enlarged, or restricted by the language of
the confederation. That would be to make it speak, what its words do not import,
and its objects do not justify. It would be to append it, as a codicil, to an
instrument, which it was designed wholly to supercede and vacate.

§ 912. But the argument in its other branch rests on an
assumed basis, which is not admitted. It supposes, that in the confederation no
expenses, not strictly incurred under some of the subsequent specified powers
given to the continental congress, could be properly payable out of the common
treasury. Now, that is a proposition to be proved; and is not to be taken for

CH. XIV.] POWERS OF CONGRESS--TAXES. 375

granted. The confederation was not finally ratified, so as to become a binding
instrument on any of the states, until March, 1781. Until that period there
could be no practice or construction under it; and it is not shown, that
subsequently there was any exposition to the effect now insisted on. Indeed,
after the peace of 1783, if there had been any such exposition, and it had been
unfavourable to the broad exercise of the power, it would have been entitled to
less weight, than usually belongs to the proceedings of public bodies in the
administration of their powers; since the decline and fall of the confederation
was so obvious, that it was of little use to exert them. The states notoriously
disregarded the rights and prerogatives admitted to belong to the confederacy;
and even the requisitions of congress, for objects most unquestionably within
their constitutional authority, were openly denied, or silently evaded. Under
such circumstances, congress would have little inclination to look closely to
their powers; since, whether great or small, large or narrow, they were of
little practical value, and of no practical cogency.

§ 913. But it does so happen, that in point of fact, no such
unfavourable or restrictive interpretation or practice was ever adopted by the
continental congress. On the contrary, they construed their power on the subject
of requisitions and taxation, exactly as it is now contended for, as a power to
make requisitions on the states for all expenses, which they might deem proper
to incur for the common defence and general welfare; and to appropriate all
monies in the treasury to the like purposes. This is admitted to be of such
notoriety, as to require no proof.1 Surely, the practice of that body in ques-

_________________________________

1 Mr. Madison himself, in his Letter to Mr. Stevenson, Nov. 27, 1830,

376 CONSTITUTION OF THE U. STATES. [BOOK III.

tions of this nature must be of far higher value, than the mere private
interpretation of any persons in the present times, however respectable. But the
practice was conformable to the constitutional authority of congress under the
confederation. The ninth article expressly delegates to congress the power "to
ascertain the necessary sums to be raised for the service of the United States,
and to appropriate and apply the same for defraying the public expenses;"
and then provides, that congress shall not "ascertain the

___________________________________

admits the force of these remarks in their full extent. His language is, "If
the practice of the revolutionary congress be pleaded in opposition to this view
of the case," (i.e. his view, that the words have no distinct meaning,) "the
plea is met by the notoriety, that, on several accounts, the practice of that
body is not the expositor of the articles of the confederation. These articles
were not in force, until they were finally ratified by Maryland, in 1781. Prior
to that event, the power of congress was measured by the exigencies of the war;
and derived its sanction from the acquiescence of the states. After that event,
habit, and a continued expediency, amounting often to a real, or an apparent
necessity, prolonged the exercise of an undefined authority, which was the more
readily overlooked, as the members of that body held their seats during
pleasure; as it acts, particularly after the failure of the bills of credit,
depended for their efficacy on the will of the states, and as its general
impotency became manifest. Examples of departure from the prescribed rule are
too well known to require proof." So that it is admitted, that the
practice, under the confederation, was notoriously such, as allowed
appropriations by congress for any objects, which they deemed for the common
defence and general welfare. And yet we are now called upon to take a new and
modern gloss of that instrument, directly at variance with that practice. See
also Mr. Wilson's pamphlet, on the constitutionality of the bank of North
America, in 1785. The reason, why he does not allude to the terms "common
defence and general welfare," in that argument, probably was, that there
was no question respecting appropriations of money involved in that discussion.
He strenuously contends, that congress had a right to charter the bank; and he
alludes to the fifth article, which, for the convenient management of the
general interests of the United States, provides for the appointment of
delegates from the states. He deduces the power, from its being essentially
national, and vitally important to the government. 3 Wilson's Law Lect. 397.

CH. XIV.] POWERS OF CONGRESS--TAXES. 377

sums and expenses necessary for the defence and welfare of the United States, or
any of them, &c. unless nine states assent to the same." So that here
we have, in the eighth article, a declaration, that "all charges of war and
all other expenses, that shall be incurred for the common defence or general
welfare, &c. shall be defrayed out of a common treasury;" and in the
ninth article, an express power to ascertain the necessary sums of money to be
raised for the public service; and then, that the necessary sums for the defence
and welfare of the United States, (and not of the United States alone, for the
words are added,) or of any of them, shall be ascertained by the assent of nine
states. Clearly therefore, upon the plain language of the articles, the words "common
defence and general welfare," in one, and "defence and welfare,"
in another, and "public service," in another, were not idle words, but
were descriptive of the very intent and objects of the power; and not confined
even to the defence and welfare of all the states, but extending to the welfare
and defence of any of them.1 The power then is, in this view, even larger, than
that conferred by the constitution.

§ 914. But there is no ground whatsoever, which authorizes any
resort to the confederation, to interpret the power of taxation, which is
conferred on congress by the constitution. The clause has no reference
whatsoever to the confederation; nor indeed to any other clause of the
constitution. It is, on its face, a distinct, substantive, and independent
power. Who, then, is at liberty to say, that it is to be limited by other
clauses, rather than they to be enlarged by it; since

___________________________________

1 2 Elliot's Deb. 195.

378 CONSTITUTION OF THE U. STATES. [BOOK III.

there is no avowed connexion, or reference from the one to the others?
Interpretation would here desert its proper office, that, which requires, that "every
part of the expression ought, if possible, to be allowed some meaning, and be
made to conspire to some common end."1

§ 915. It has been farther said, in support of the
construction now under consideration, that "whether the phrases in question
are construed to authorize every measure relating to the common defence and
general welfare, as contended by some; or every measure only, in which there
might be an application of money, as suggested by the caution of others; the
effect must substantially be the same, in destroying the import and force of the
particular enumeration of powers, which follow these general phrases in the
constitution. For it is evident, that there is not a single power whatsoever,
which may not have some reference to the common defence, or the general welfare;
nor a power of any magnitude, which, in its exercise, does not involve, or admit
an application of money. The government, therefore, which possesses power in
either one, or the other of these extents, is a government without limitations,
formed by a particular enumeration of powers; and consequently the meaning and
effect of this particular enumeration is destroyed by the exposition given to
these general phrases." The conclusion de-

___________________________________

1 The Federalist, No- 40. -- In the first draft, of Dr. Franklin, in 1775,
the clause was as follows: "All charges of wars, and all other general
expenses, to be incurred for the common welfare, shall be defrayed," &c.
-- In Mr. Dickinson's draft, in July, 1776, the words were, "All charges of
wars, and all other expenses, that Shall be incurred for the common defence, or
general welfare," &c; and these words were subsequently retained. 1
Secret Jour. of Congress, (printed in 1821,) p. 285, 294, 307, 323 to 325, 354.

CH. XIV.] POWERS OF CONGRESS--TAXES. 379

duced from these premises is, that under the confederation, and the
constitution, "congress is authorized to provide money for the common
defence and general welfare. In both is subjoined to this authority an
enumeration of the cases, to which their powers shall extend. Money cannot be
applied to the general welfare otherwise, than by an application of it to some
particular measure, conducive to the general welfare. Whenever, therefore, money
has been raised by the general authority, and is to be applied to a particular
measure, a question arises, whether the particular measure be within the
enumerated authorities rested in the congress. If it be, the money requisite for
it may be applied to it; if it be not, no such application can be made. This
fair and obvious interpretation coincides with, and is enforced by the clause in
the constitution, which declares, that no money shall be drawn from the treasury
but in consequence of appropriations by law. An appropriation of money to the
general welfare would be deemed rather a mockery, than an observance of this
constitutional injunction."1

§ 916. Stripped of the ingenious texture, by which this
argument is disguised, it is neither more nor less, than an attempt to
obliterate from the constitution the whole clause, "to pay the debts, and
provide for the common defence and general welfare of the United States,"
as entirely senseless, or inexpressive of any intention whatsoever.2 Strike
them out, and the constitution is exactly what the argument contends for. It is,
therefore, an argument, that the words ought not to

be in the constitution; because if they are, and have any meaning, they enlarge
it beyond the scope of certain other enumerated powers, and this is both
mischievous and dangerous. Being in the constitution, they are to be deemed, vox
et preterea nihil, an empty sound and vain phraseology, a finger-board pointing
to other powers, but having no use whatsoever, since these powers are
sufficiently apparent without.1 Now, it is not too much to say, that in a
constitution of government, framed and adopted by the people, it is a most
unjustifiable latitude of interpretation to deny effect to any clause, if it is
sensible in the language, in which it is expressed, and in the place, in which
it stands. If words are inserted, we are bound to presume, that they have some
definite object, and intent; and to reason them out of the constitution upon
arguments ab inconvenienti, (which to one mind may appear wholly unfounded, and
to another wholly satisfactory,) is to make a new constitution, not to construe
the old one. It is to do the very thing, which is so often complained of, to
make a constitution to suit our own notions and wishes, and not to administer,
or construe that; which the people have given to the country.

§ 917. But what is the argument, when it is thoroughly sifted?
It reasons upon a supposed dilemma, upon which it suspends the advocates of the
two contrasted opinions. If the power to provide for the common defence and
general welfare is an independent

___________________________________

1 In a Debate of 7th of February, 1792. (4 Elliot's Deb. 236.) Mr. Madison
puts them, (manifestly as his own construction,) "as a sort of caption, or
general description of the specified powers, and as having no further meaning,
and giving no further powers, than what is found in that specification."
See also, Mr. Madison's Veto message, on the Bank Bonus Bill, 3d March, 1817. 4
Elliot's Deb. 0, 281.

CH. XIV.] POWERS OF CONGRESS--TAXES. 381

power, then it is said, that the government is unlimited, and the subsequent
enumeration of powers is unnecessary and useless. If it is a mere appendage or
qualification of the power to lay taxes, still it involves a power of general
appropriation of the monies so raised, which indirectly produces the same
result.1 Now, the former position may be safely admitted to be true by those,
who do not deem it an independent power; but the latter position is not a just
conclusion from the premises, which it states, that it is a qualified power. It
is not a logical, or a practical sequence from the premises; it is a non
sequitur.

§ 918. A dilemma, of a very different sort, might be fairly
put to those, who contend for the doctrine, that the words are not a
qualification of the power to lay taxes, and, indeed, have no meaning, or use
per se. The words are found in the clause respecting taxation, and as a part of
that clause. If the power to tax extends simply to the payment of the debts of
the United States, then congress has no power to lay any taxes for any other
purpose. If so, then congress could not appropriate the money raised to any
other purposes; since the restriction is to taxes for payment of the debts of
the United States, that is, of the debts then existing. This would be almost
absurd. If, on the other hand, congress have a right to lay taxes, and
appropriate the money to any other objects, it must be, because the words, "to
provide for the common defence and general welfare," authorize it, by
enlarging the power to those objects; for there are no other words, which belong
to the clause. All the other powers are in distinct clauses, and do not touch
taxation. No advocate for

___________________________________

1 4 Elliot's Deb. 280, 281.

382 CONSTITUTION OF THE U. STATES. [BOOK III.

the doctrine of a restrictive power will contend, that the power to lay taxes to
pay debts, authorizes the payment of all debts, which the United States may
choose to incur, whether for national or constitutional objects, or not. The
words, "to pay debts," are therefore, either antecedent debts, or
debts to be incurred "for the common defence and general welfare,"
which will justify congress in incurring any debts for such purposes. But the
language is not confined to the payment of debts for the common defence and
general welfare. It is not "to pay the debts" merely; but "to
provide for the common defence and general welfare." That is, congress may
lay taxes to provide means for the common defence and general welfare. So that
there is a difficulty in rejecting one part of the qualifying clause, without
rejecting the whole, or enlarging the words for some purposes, and restricting
them for others.

§ 919. A power to lay taxes for any purposes whatsoever is a
general power; a power to lay taxes for certain specified purposes is a limited
power. A power to lay taxes for the common defence and general welfare of the
United States is not in common sense a general power. It is limited to those
objects. It cannot constitutionally transcend them. If the defence proposed by a
tax be not the common defence of the United States, if the welfare be not
general, but special, or local, as contradistinguished from national, it is not
within the scope of the constitution. If the tax be not proposed for the common
defence, or general welfare, but for other objects, wholly extraneous, (as for
instance, for propagating Mahometanism among the Turks, or giving aids and
subsidies to a foreign nation, to build palaces for its kings, or erect
monuments to its

CH. XIV.] POWERS OF CONGRESS--TAXES. 383

heroes,) it would be wholly indefensible upon constitutional principles. The
power, then, is, under such circumstances, necessarily a qualified power. If it
is so, how then does it affect, or in the slightest degree trench upon the other
enumerated powers? No one will pretend, that the power to lay taxes would, in
general, have superseded, or rendered unnecessary all the other enumerated
powers. It would neither enlarge, nor qualify them. A power to tax does not
include them. Nor would they, (as unhappily the confederation too clearly
demonstrated,)1 necessarily include a power to tax. Each has its appropriate
office and objects; each may exist without necessarily interfering with, or
annihilating the other. No one will pretend, that the power to lay a tax
necessarily includes the power to declare war, to pass naturalization and
bankrupt laws, to coin money, to establish post-offices, or to define piracies
and felonies on the high seas. Nor would either of these be deemed necessarily
to include the power to tax. It might be convenient; but it would not be
absolutely indispensable.

§ 920. The whole of the elaborate reasoning upon the propriety
of granting the power of taxation, pressed with so much ability and earnestness,
both in and out of the convention,2 as vital to the operations of the national
government, would have been useless, and almost absurd, if the power was
included in the subsequently enumerated powers. If the power of taxing was to be
granted, why should it not be qualified according to the intention of the
framers of the constitution? But then, it is said, if congress may lay taxes for
the common defence and general welfare, the money may be appro-

priated for those purposes, although not within the scope of the other
enumerated powers. Certainly it may be so appropriated; for if congress is
authorized to lay taxes for such purposes, it would be strange, if, when raised,
the money could not be applied to them. That would be to give a power for a
certain end, and then deny the end intended by the power. It is added, "that
there is not a single power whatsoever, which may not have some reference to the
common defence or general welfare; nor a power of any magnitude, which, in its
exercise, does not involve, or admit an application of money." If by the
former language is meant, that there is not any power belonging, or incident to
any government, which has not somer eference to the common defence or general
welfare, the proposition may be peremptorily denied. Many governments possess
powers, which have no application to either of these objects in a just sense;
and some possess powers repugnant to both. If it is meant, that there is no
power belonging, or incident to a good government, and especially to a
republican government, which may not have some reference to those objects, that
proposition may, or may not be true; but it has nothing to do with the present
inquiry. The only question is, whether a mere power to lay taxes, and
appropriate money for the common defence and general welfare, does include all
the other powers of government; or even does include the other enumerated powers
(limited as they are) of the national government. No person can answer in the
affirmative to either part of the inquiry, who has fully considered the subject.
The power of taxation is but one of a multitude of powers belonging to
governments; to the state governments, as well as the national government. Would
a power to tax authorize a

CH. XIV.] POWERS OF CONGRESS--TAXES. 385

state government to regulate the descent and distribution of estates; to
prescribe the form of conveyances; to establish courts of justice for general
purposes; to legislate respecting personal rights, or the general dominion of
property; or to punish all offences against society? Would it confide to
congress the power to grant patent rights for invention; to provide for
counterfeiting the public securities and coin; to constitute judicial tribunals
with the powers confided by the third article of the constitution; to declare
war, and raise armies and navies, and make regulations for their government; to
exercise exclusive legislation in the territories of the United States, or in
other ceded places; or to make all laws necessary and proper to carry into
effect all the powers given by the constitution? The constitution itself upon
its face refutes any such notion. It gives the power to tax, as a substantive
power; and gives others, as equally substantive and independent.

§ 921. That the same means may sometimes, or often, be
resorted to, to carry into effect the different powers, furnishes no objection;
for that is common to all governments. That an appropriation of money may be the
usual, or best mode of carrying into effect some of these powers, furnishes no
objection; for it is one of the purposes, for which, the argument itself admits,
that the power of taxation is given. That it is indispensable for the due
exercise of all the powers, may admit of some doubt. The only real question is,
whether even admitting the power to lay taxes is appropriate for some of the
purposes of other enumerated powers, (for no one will contend, that it will, of
itself, reach, or provide for them all,) it is limited to such appropriations,
as grow out of the exercise of those powers. In other words, whether it is an
incident to those powers, or a

386 CONSTITUTION OF THE U. STATES. [BOOK III.

substantive power in other cases, which may concern the common defence and the
general welfare. If there are no other cases, which concern the common defence
and general welfare, except those within the scope of the other enumerated
powers, the discussion is merely nominal and frivolous. If there are such cases,
who is at liberty to say, that, being for the common defence and general
welfare, the constitution did not intend to embrace them? The preamble of the
constitution declares one of the objects to be, to provide for the common
defence, and to promote the general welfare; and if the power to lay taxes is in
express terms given to provide for the common defence and general welfare, what
ground can there be to construe the power, short of the object? To say, that it
shall be merely auxiliary to other enumerated powers, and not co-extensive with
its own terms, and its avowed objects? One of the best established rules of
interpretation, one, which common sense and reason forbid us to overlook, is,
that when the object of a power is clearly defined by its terms, or avowed in
the context, it ought to be construed, so as to obtain the object, and not to
defeat it. The circumstance, that so construed the power may be abused, is no
answer. All powers may be abused; but are they then to be abridged by those, who
are to administer them, or denied to have any operation? If the people frame a
constitution, the rulers are to obey it. Neither rulers, nor any other
functionaries, much less any private persons, have a right to cripple it,
because it is according to their own views inconvenient, or dangerous, unwise or
impolitic, of narrow limits, or of wide influence.

§ 922. Besides; the argument itself admits, that "congress
is authorized to provide money for the

CH. XIV.] POWERS OF CONGRESS--TAXES. 387

common defence and general welfare." It is not pretended, that, when the
tax is laid, the specific objects, for which it is laid, are to be specified, or
that it is to be solely applied to those objects. That would be to insert a
limitation, no where stated in the text. But it is said, that it must be applied
to the general welfare; and that can only be by an application of it to some
particular measure, conducive to the general welfare. This is admitted. But
then, it is added, that this particular measure must be within the enumerated
authorities vested in congress, (that is, within some of the powers not embraced
in the first clause,) otherwise the application is not authorized.1 Why not,
since it is for the general welfare? No reason is assigned, except, that not
being within the scope of those enumerated powers, it is not given by the
constitution. Now, the premises may be true; but the conclusion does not follow,
unless the words common defence and general welfare are limited to the
specifications included in those powers. So, that after all, we are led back to
the same reasoning, which construes the words, as having no meaning per se, but
as dependent upon, and an exponent of, the enumerated powers. Now, this
conclusion is not justified by the natural connexion or collocation of the
words; and it strips them of all reasonable force and efficacy. And yet we are
told, that "this fair and obvious interpretation coincides with, and is
enforced by, the clause of the constitution, which provides, that no money shall
be drawn from the treasury, but in consequence of appropriations by law;"
as if the clause did not equally apply, as a restraint upon drawing money,
whichever construction is adopted. Suppose

congress to possess the most unlimited power to appropriate money for the
general welfare; would it not be still true, that it could not be drawn from the
treasury, until an appropriation was made by some law passed by congress? This
last clause is a limitation, not upon the powers of congress, but upon the acts
of the executive, and other public officers, in regard to the public monies in
the treasury.

§ 923. The argument in favour of the construction, which
treats the clause, as a qualification of the power to lay taxes, has, perhaps,
never been presented in a more concise or forcible shape, than in an official
opinion, deliberately given by one of our most distinguished statesmen.1 "To
lay taxes to provide for the general welfare of the United States, is,"
says he, "to lay taxes for the purpose, of providing for the general
welfare. For the laying of taxes is the power, and the general welfare the
purpose, for which the power is to be exercised. Congress are not to lay taxes
ad libitum, for any purpose they please; but only to pay the debts, or provide
for the welfare of the Union. In like manner they are not to do any thing they
please, to provide for the general welfare; but only to lay taxes for that
purpose. To consider the latter phrase, not as describing the purpose of the
first, but as giving a distinct and independent power to do any act they please,
which might be for the good of the Union, would render all the preceding, and
subsequent enumerations of power completely useless. It would reduce the whole
instrument to a single phrase, that of instituting a congress with power to do
whatever would be for the good of the United States; and, as they would be the
sole judges of the good or evil, it would also be a pow

___________________________________

1 Mr. Jefferson.

CH. XIV.] POWERS OF CONGRESS--TAXES. 389

er to do whatever evil they pleased. It is an established rule of construction,
where a phrase will bear either of two meanings, to give that, which will allow
some meaning to the other parts of the instrument, and not that, which will
render all the others useless. Certainly, no such universal power was meant to
be given them. It was intended to lace them up strictly within the enumerated
powers, and those, without which, as means, those powers could not be carried
into effect."1

§ 924. The same opinion has been maintained at different and
distant times by many eminent statesmen.2 It was avowed, and apparently
acquiesced in, in the state conventions, called to ratify the constitution;3
and it has been, on various occasions, adopted

___________________________________

1 Jefferson's Opinion on the Bank of the United States, 15th February, 1791;
4 Jefferson's Correspondence, 524, 525. -- This opinion was deliberately
reasserted by Mr. Jefferson on other occasions. There may, perhaps, also be
found traces of an opinion still more restrictive in his later writings; but
they are are obscure and unsatisfactory. See 4 Jefferson's Correspondence, 306,
416, 457; Message of President Jefferson, 2d December, 1806; 5 Wait's State
Papers, 453, 458, 459. 2 It was maintained by Mr. Hamilton, in his
Treasury Report on Manufactures, (5th Dec. 1791,) and in his argument on the
constitutionality of a National Bank, 23d Feb 1791, p, 147, 148; by Mr. Gerry in
the debate on the National Bank in Feb. 1791,(4 Elliot's Debates, 226;) by Mr.
Ellsworth in a speech in 1788, (3 American Museum, 338;) and by President
Monroe, in his Message of the 4th of May, 1822, (p. 33 to 38,) in an elaborate
argument, which well deserves to be studied. He contends, that the power to lay
taxes is confined to purposes for the common defence and general welfare. And
that the power of appropriation of the monies is co-extensive, that is, that it
may be applied to any purposes of the common defence or general welfare. Mr.
Adams, in his Letter to Mr. Speaker Stevenson. 11th of July, 1832, published
since the preparation of these Commentaries, has given a masterly exposition of
the clause, to which it may be important hereafter again to recur. 3 2
Elliot's Debates, 170, 183, 195, 328, 314; 3 Elliot's Debates, 262; 2 American
Museum, 434; 1 Elliot's Debates, 311; Id. 81, 82; 3 Elliot's Debates, 262, 290;
2 American Museum, 544.

390 CONSTITUTION OF THE U. STATES. [BOOK III.

by congress,1 and may fairly be deemed, that which the deliberate sense of a
majority of the nation has at all times supported. This, too, seems to be the
construction maintained by the Supreme Court of the United States. In the case
of Gibbons v. Ogden,2 Mr. Chief Justice Marshall, in delivering the opinion of
the court, said, "Congress is authorized to lay and collect taxes, &c.
to pay the debts, and provide for the common defence and general welfare of the
United States. This does not interfere with the power of the states to tax for
the support of their own governments; nor is the exercise of that power by the
states an exercise of any portion of the power, that is granted to the United
States. In imposing taxes for state purposes, they are not doing, what congress
is empowered to do. Congress is not empowered to tax for those purposes, which
are within the exclusive province of the states. When, then, each government is
exercising the power of taxation, neither is exercising the power of the other."
Under such circumstances, it is not, perhaps, too much to contend, that it is
the truest, the safest, and the most authoritative construction of the
constitution.3

§ 925. The view thus taken of this clause of the constitution
will receive some confirmation, (if it should be thought by any person
necessary,) by an historical examination of the proceedings of the convention.

The first resolution adopted by the convention on this subject of the powers of
the general government, was that the national legislature ought to be empowered
to enjoy the legislative rights vested in congress by the confederation, and
moreover to legislate in all cases, to which the separate states are
incompetent, or in which the harmony of the United States may be interrupted by
the exercise of individual legislation;"1 At a subsequent period, the
latter clause was altered, so as to read thus: "And, moreover, to legislate
in all cases for the general interests of the Union, and also in those, to which
the states are separately incompetent, or in which the harmony of the United
States may be interrupted by the exercise of individual legislation."2
When the first draft of the constitution was prepared, in pursuance of the
resolutions of the convention, the clause respecting taxation (being the first
section of the seventh article) stood thus: "The legislature of the United
States shall have the power to lay and collect taxes, duties, imposts, and
excises," without any qualification or limitation whatsoever.

§ 926. Afterwards a motion was made to refer certain
propositions, and among others a proposition to secure the payment of the public
debt, and to appropriate funds exclusively for that purpose, and to secure the
public creditors from a violation of the public faith, when pledged by the
authority of the legislature, to a select committee, (of five,) which was
accordingly done.3 Another committee (of eleven) was appointed at the same
time, to consider the necessity and expediency of the debts of the several
states being, assumed

by the United States.1 The latter committee reported, that "the
legislature of the United States shall have power to fulfil the engagements,
which have been entered into by congress, and to discharge, as well the debts of
the United States, as the debts incurred by the several states during the late
war, for the common defence and general welfare." This proposition (it may
be presumed) has no reference whatsoever to the clause in the draft of the
constitution to lay taxes. The former committee (of five) at a later day
reported, that there should be added to the first section of the seventh article
(the clause to lay taxes) the following words, "for payment of the debts
and the necessary expenses of the United States, provided, that no law for
raising any branch of revenue, except what may be specially appropriated for the
payment of interest on debts or loans, shall continue in force for more than --
years."2 It was then moved to amend the first clause of the report of
the other committee, (on state debts,) so as to read as follows: "The
legislature shall fulfil the engagements and discharge the debts of the United
States," which (after an ineffectual attempt to amend by striking out the
words, "discharge the debts," and inserting the words, "liquidate
the claims,") passed unanimously in the affirmative.3 So, that the
provision in the report, to assume the state debts, was struck out. On a
subsequent day, it was moved to amend the first section of the seventh article,
so as to read: "The legislature shall fulfil the engagements, and discharge
the debts of the United States, and shall have power to lay and. collect taxes,
duties, imposts,

and excises," which passed in the affirmative;1 thus incorporating the
amendment already stated with the clause respecting taxes in the draft of the
constitution. On a subsequent day the following clause was proposed and agreed
to: "All debts contracted, and engagements entered into by or under the
authority of congress, shall be as valid against the United States, under this
constitution, as under the confederation." On the same day, and after the
adoption of this amendment, it was proposed to add to the first clause of the
first section of the seventh article, (to lay taxes, &c.,) the following
words: "for the payment of said debts, and for the defraying the expenses,
that shall be incurred for the common defence, and general welfare," which
passed in the negative by the vote of ten states against one.2 So, that the
whole clause stood without any further amendment, giving, the power of taxation
in the same unlimited terms, as it was reported in the original draft of the
constitution. This unlimited extent of the power of taxation seems to have been
unsatisfactory; and at a later day another committee reported, that the clause
respecting taxation should read as follows: "The legislature shall have
power to lay and collect taxes, duties, imposts, and excises, to pay the debts,
and provide for the common defence, and general welfare of the United States;"
and this passed in the affirmative without any division.3 And in the final
draft the whole clause now stands thus: "The congress, &c. shall have
power to lay and collect taxes, duties, imposts, and excises; to pay the debts
and provide for the common defence and general welfare of the United States."4
From this historical survey,

it is apparent, that it was first brought forward in connexion with the power to
lay taxes; that it was originally adopted, as a qualification or limitation of
the objects of that power; and that it was not discussed, as an independent
power, or as a general phrase pointing to, or connected with, the subsequent
enumerated powers. There was another amendment proposed, which would have
created a general power to this effect; but it was never adopted, and seems
silently to have been abandoned.1

§ 927. Besides; it is impracticable in grammatical propriety
to separate the different parts of the latter clause. The words are, "to
pay the debts, and provide for the common defence," &c. "To pay
the debts" cannot be construed, as an independent power; for it is
connected with the other by the copulative "and." The payment of the
antecedent debts of the United States was already provided for by a distinct
article;2 and the power to pay future debts must necessarily be implied to the
extent, to which they could constitutionally be contracted; and would fall
within the purview of the enumerated power to pass all laws necessary and proper
to carry the powers given by the constitution into effect. If, then, these words
were and ought to be read, as a part of the preceding power to lay taxes, and in
connexion with it, (as this historical review establishes beyond any reasonable
controversy,) they draw the other words, "and provide for the common
defence," &c. with them into the same connexion. On the other hand, if
this connexion be once admitted, it would be almost absurd to contend, that "to
pay the debts" of the United States was a general phrase,

___________________________________

1 Journ. of Convention, 277. 2 Journ. of Convention, 291. See also the
Constitution, art. 6.

CH. XIV.] POWERS OF CONGRESS--TAXES. 395

which pointed to the subsequent enumerated powers, and was qualified by them;
and yet, as a part of the very clause, we are not at liberty to disregard it.
The truth is, (as the historical review also proves,) that after it had been
decided, that a positive power to pay the public debts should be inserted in the
constitution, and a desire had been evinced to introduce some restriction upon
the power to lay taxes, in order to allay jealousies and suppress alarms, it was
(keeping both objects in view) deemed best to append the power to pay the public
debts to the power to lay taxes; and then to add other terms, broad enough to
embrace all the other purposes contemplated by the constitution. Among these
none were more appropriate, than the words, "common defence and general
welfare," found in the articles of confederation, and subsequently with
marked emphasis introduced into the preamble of the constitution. To this course
no opposition was made, because it satisfied those, who wished to provide
positively for the public debts, and those, who wished to have the power of
taxation co-extensive with all constitutional objects and powers. In other
words, it conformed to the spirit of that resolution of the convention, which
authorized congress "to legislate, in all cases, for the general interests
of the Union."1

___________________________________

1 Journal of Convention, 181, 182, 208. -- The letter of Mr. Madison to Mr.
Stevenson of 27th November, 1830, contains an historical examination of the
origin and progress of this clause substantially the same, as that given above.
After perusing it, I perceive no reason to change the foregoing, reasoning. In
one respect, Mr. Madison seems to labour under a mistake, viz. in supposing,
that the proposition of the 25th of August, to add to the power to lay taxes, as
previously amended on the 23d of August, the words, "for the payment of the
debt and for defraying the expenses, that shall be incurred for the common
defence and general welfare," was rejected on account of the generality of
the

396 CONSTITUTION OF THE U. STATES. [BOOK III.

§ 928. Having thus disposed of file question, what is the true
interpretation of the clause, as it stands in the text of the constitution, and
ascertained!. that the power

___________________________________

phraseology. The known opinions of some of the states, which voted in the
negative (Connecticut alone voted in the affirmative) shows, that it could not
have been rejected on this account. It is most probable, that it was rejected,
because it contained a restriction upon the power to tax; for this power appears
at first to have passed without opposition in its general form.* It may be
acceptable to the general reader to have the remarks of this venerable statesman
in his own words, and therefore they are here inserted. After giving an
historical review of the origin and progress of the whole clause, he says,

"A special provision in this mode could not have been necessary for
the debts of the new congress; for a power to provide money, and a power to
perform certain acts, of which money is the ordinary and appropriate means,
must, of course, carry with them, a power to pay the expense of performing the
acts. Nor was any special provision for debts proposed, till the case of the
revolutionary debts was brought into view; and it is a fair presumption, from
the course of the varied propositions, which have been noticed, that but for the
old debts, and their association with the terms, 'common defence and general
welfare,' the clause would have remained, as reported in the first draft of a
constitution, expressing generally 'a power in congress to lay and collect
taxes, duties, imposts, and excises;' without any addition of the phrase 'to
provide for the common defence and general welfare.' With this addition,
indeed, the language of the clause being in conformity with that of the clause
in the articles of confederation, it would be qualified, as in those articles,
by the specification of powers subjoined to it. But there is sufficient reason
to suppose, that the terms in question would not have been introduced, but for
the introduction of the old debts, with which they happened to stand in a
familiar, though inoperative, relation. Thus introduced, however, they pass
undisturbed through the subsequent stages of the constitution.

"If it be asked, why the terms 'common defence and general welfare,'
if not meant to convey the comprehensive power, which, taken literally, they
express, were not qualified and explained by some reference to the particular
power subjoined, the answer is at hand, that although it might easily have been
done, and experience shows it might be well, if it had been done, yet the
omission is accounted for by an inattention to the phraseology, occasioned,
doubtless, by identity with the harmless character attached to it in the
instrument, from which it was borrowed.

"But may it not be asked with infinitely more propriety, and without
the possibility of a satisfactory answer, why, if the terms were meant to

* Journal of Convention, p. 220, 257, 284, 291.

CH. XIV.] POWERS OF CONGRESS--TAXES. 397

of taxation, though general, as to the 'subjects, to which it may be applied, is
yet restrictive, as to the purposes, for which it may be exercised; it next
becomes matter

___________________________________

embrace, not only all the powers particularly expressed, but the indefinite
power, which has been claimed under them, the intention was not so declared;
why, on that supposition, so much critical labour was employed in enumerating
the particular powers. and in defining and limiting their extent?

"The variations and vicissitudes in the modification of the clause, in
which the terms 'common defence and general welfare' appear, are remarkable; and
to be no otherwise explained, than by differences of opinion, concerning the
necessity or the form of a constitutional provision for the debts of the
revolution; some of the members, apprehending improper claims for losses by
depreciated bills of credit; others, an evasion of proper claims, if not
positively brought within the authorized functions of the new government; and
others again, considering the past debts of the United States, as sufficiently
secured by the principle, that no change in the government could change the
obligations of the nation. Besides the indications in the Journal, the history
of the period sanctions this explanation.

"But, it is to be emphatically remarked, that in the multitude of
motions, propositions, and amendments, there is not a single one having
reference to the terms 'common defence and general welfare,' unless we were so
to understand the proposition containing them, made on August 25th, which was
disagreed to by all the states, except one.

"The obvious conclusion, to which we are brought, is, that these
terms, copied from the articles of confederation, were regarded in the new, as
in the old instrument, merely as general terms, explained and limited by the
subjoined specifications, and therefore requiring no critical attention or
studied precaution.

"If the practice of the revolutionary congress be pleaded in
opposition to this view of the case, the plea is met by the notoriety, that on
several accounts, the practice of that body is not the expositor of the
'articles of confederation.' These articles were not in force, till they were
finally ratified by Maryland in 1781. Prior to that event, the power of
congress was measured by the exigencies of the war, and derived its sanction
from the acquiescence of the states. After that event, habit, and a continued
expediency, amounting often to a real or apparent necessity, prolonged the
exercise of an undefined authority, which was the more readily overlooked, as
the members of the body held their seats during pleasure, as its acts,
particularly after the failure of the bills of credit, depended for their
efficacy on the will of the slates; and as its general impotency become
manifest. Examples of departure from the prescribed rule are too well known to
require proof. The

398 CONSTITUTION OF THE U. STATES. [BOOK III.

of inquiry, what were the reasons, for which this power was given, and what were
the objections, to which it was deemed liable.

_______________________________

case of the old bank of North America might be cited, as a memorable one.
The incorporating ordinance grew out of the inferred necessity of such an
institution to carry on the war, by aiding the finances, which were starving
under the neglect or inability of the states to furnish their assessed quotas.
Congress was at the time so much aware of the deficient authority, that they
recommended it to the state legislatures to pass laws giving due effect to the
ordinance, which was done by Pennsylvania and several other states.

"Mr. Wilson, justly distinguished for his intellectual powers, being
deeply impressed with the importance of a bank at such a crisis, published s
small pamphlet, entitled 'Considerations on the Bank of North America,' in which
he endeavoured to derive the power from the nature of the Union, in which the
colonies were declared and become independent states; and also from the tenour
of the articles of confederation' themselves. But what is particularly worthy
of notice is, that with all his anxious search in those articles for such a
power, he never glanced at the terms, 'common defence and general welfare,' as a
source of it. He rather chose to rest the claim on a recital in the text, 'that
for the more convenient management of the general interests of the United
States, delegates shall be annually appointed to meet in congress,' which he
said implied, that the United States had general rights, general powers, and
general obligations, not derived from any particular state, nor from all the
particular states, taken separately, but 'resulting from the union of the
whole;' these general powers, not being controlled by the article declaring,
that each state retained all powers not granted by the articles, because 'the
individual states never possessed, and could not retain, a general power over
the others.'

"The authority and argument here resorted to, if proving the ingenuity
and patriotic anxiety of the author, on one hand, show sufficiently on the
other, that the terms, 'common defence and general welfare,' could not,
according to the known acceptation of them, avail his object.

"That the terms in question were not suspected in the convention,
which formed the constitution, of any such meaning, as has been constructively
applied to them may be pronounced with entire confidence. For it exceeds the
possibility of belief; that the known advocates in the convention for a jealous
grant, and cautious definition of federal powers, should have silently permitted
the introduction of words or phrases, in a sense rendering fruitless the
restrictions and definitions elaborated by them.

"Consider, for a moment, the immeasurabIe difference between the
constitution, limited in its powers to the enumerated objects; and ex-

CH. XIV.] POWERS OF CONGRESS--TAXES. 399

§ 929. That the power of taxation should be, to some extent, vested in the
national government, was admitted by all persons, who sincerely desired to
escape

___________________________________

panded, as it would be by the import claimed for the phraseology in
question. The difference is equivalent to two constitutions, of characters
essentially contrasted with each other; the one possessing powers confined to
certain specified cases; the other extended to all cases whatsoever. For what is
the case, that would not be embraced by a general power to raise money; a power
to provide for the general welfare; and a power to pass all laws necessary and
proper to carry these powers into execution; all such provisions and laws
superseding at the same time, all local laws and constitutions at variance with
them? Can less be said, with the evidence before us, furnished by the Journal of
the Convention itself, than that it is impossible, that such a constitution, as
the latter, would have been recommended to the states by all the members of that
body, whose names were subscribed to the instrument?

"Passing from this view of the sense, in which the terms, 'common
defence and general welfare,' were used by the framers of the constitution, let
us look for that, in which they must have been understood by the conventions, or
rather by the people, who. through their conventions, accepted and ratified it.
And here the evidence is, if possible, stilt more irresistible, that the terms
could have been regarded, as giving a scope to federal legislation, infinitely
more objectionable, than any of the specified powers, which produced such
strenuous opposition, and calls for amendments, which might be safeguards
against the dangers apprehended from them. "Without recurring to the
published debates of those conventions. which, as far as they can be relied on
for accuracy, would, iris believed, not impair the evidence furnished by their
recorded proceedings, it will suffice to consult the lists of amendments
proposed by such of the conventions, as considered the powers granted to the
government, too extensive, or not safely defined.

"Besides the restrictive and explanatory amendments to the text of the
constitution, it may be observed, that a long list was premised under the name,
and in the nature of 'Declaration of Rights;' all of them indicating a jealousy
of the federal powers, and an anxiety to multiply securities against a
constructive enlargement of them. But the appeal is more particularly made to
the number and nature of the amendments, proposed to be made specific and
integral part, of the constitutional text.

"No less than seven states, it appears, concurred in adding to their
ratifications a series of amendments, which they deemed requisite. Of these
amendment,, nine were proposed by the convention of Massachusetts; live by that
of South-Carolina; twelve by that of New-Hamp-

400 CONSTITUTION OF THE U. STATES. [BOOK III.

from the imbecilities, as well as the inequalities of the confederation.1
Without such a power, it would not be possible to provide for the support of the
national

___________________________________

shire; twenty by that of Virginia; thirty-three by that of New-York;
twenty-six by that of North-Carolina; and twenty-one by that of RhodeIsland.

"Here are a majority of the states, proposing amendments, in one
instance thirty-three by a single state; all of them intended to circumscribe
the power granted to the general government, by explanations, restrictions, or
prohibitions, without including a single proposition from a single state
referring to the terms, 'common defence and general welfare;' which, if
understood to convey the asserted power; could not have failed to be the power
most strenuously aimed at, because evidently more alarming in its range, titan
all the powers objected to, put together, And that the terms should have passed
altogether unnoticed by the many eyes, which saw danger in terms and phrases
employed in some of the most minute and limited of the enumerated powers, must
be regarded as a demonstration, that it was taken for granted, that the terms
were harmless, because explained and limited, as in the 'articles of
confederation,' by the enumerated powers, which followed them.

"A like demonstration, that these terms were not understood in any
sense, that could invest congress with powers not otherwise bestowed by the
constitutional charter, may be found in what passed in the first session of
congress, when the subject of amendments was taken up, with the conciliatory
view of treeing the constitution from objections, which had been made to the
extent of its powers, or to the unguarded terms employed in describing them.
Not only were the terms, 'common defence and general welfare,' unnoticed in the
long list of amendments brought forward in the outset; but the Journals of
Congress show, that in tile progress of the discussions not a single proposition
was made in either branch of the legislature, which referred to tile phrase, an
admitting a constructive enlargement of the granted powers, and requiring an
amendment guarding against it. Such a forbearance and silence on such an
occasion, and among so many members, who belonged to the part of the nation,
which called for explanatory and restrictive amendments, and who had been
elected, as known advocates for them, cannot be accounted for, without
supposing, that the terms, 'common defence and general weIfare,' were not, at
that time, deemed susceptible of any such construction, as has since been
applied to them.

"It tony be thought, perhaps, due to tile subject, to advert to a
letter of October 5th, 1787, to Samuel Adams, and another of October 16th, of

___________________________________

1 See The Federalist, No. 21, 30.

CH. XIV.] POWERS OF CONGRESS--TAXES. 401

forces by land or sea, or the national civil list, or the ordinary charges and
expenses of government. For these purposes at least, there must be a constant
and regular supply of revenue.1 If there should be a deficiency, one of two
evils must inevitably ensue; either the people must be subjected to continual
arbitrary plunder; or the government must sink into a fatal atrophy.2 The
former is the fate of Turkey under its sovereigns: the latter was the fate of
America under the confederation.3

§ 930. If, then, there is to be a real, effective national
government, there must be a power of taxation co-extensive with its powers,
wants, and duties. The only inquiry properly remaining is, whether the
resources of taxation should be specified and limited; or, whether the power in
this respect should be general, leaving a full choice to the national
legislature. The opponents of the constitution strenuously contended, that

___________________________________

he same year, to the governor of Virginia, from R.H. Lee, in both of which
it is seen, that the terms had attracted his notice, and were apprehended by him
'to submit to congress every object of human legislation.' But it is
particularly worthy of remark, that although a member of tile senate of the
United States, when amendments to the constitution were before that house, and
sundry additions and alterations were there made to the list sent from the
other, no notice was taken of those terms, as pregnant with danger. it must be
inferred, that the opinion Formed by the distinguished member, at the first view
of the constitution, and before it had been fully discussed and elucidated, had
been changed into a conviction, that the terms did not fairly admit the
construction he had originally put on them; and therefore needed no explanatory
precaution against it."

Against the opinion of Mr. Madison, there are the opinions of men of great
eminence, and well entitled to the confidence of their country; and among these
away be enumerated Presidents Washington, Jefferson, and Monroe, and Mr.
Hamilton. The opinion of the latter upon this very point will be given
hereafter in his own words.

4 the power should be restricted; its fiends, as strenuously contended, that
it was indispensable for the public safety, that it should be general.

§ 931. The general reasoning, by which an unlimited power was
sustained, was to the following effect. Every government ought to contain within
itself every power requisite to the full accomplishment of the objects committed
to its care, and the complete execution of the trusts, for which it is
responsible, free from every other control, but a regard to the public good, and
to the security of the people. In other words, every power ought to be
proportionate to its object. The duties of superintending the national defence,
and of securing the public peace against foreign or domestic violence, involve a
provision for casualties and dangers, to which no possible limits can be
assigned; and therefore the power of making that provision ought to know no
other bounds, than the exigencies of the nation, and the resources of the
community. Revenue is the essential engine, by which the means of answering the
national exigencies must be procured; and therefore the power of procuring it
must necessarily be comprehended in that of providing for those exigencies.
Theory, as well as practice, the past experience of other nations, as well as
our own sad experience under the confederation, conspire to prove, that the
power of procuring revenue is unavailing, and a mere mockery, when exercised
over states in their collective capacities. If, therefore, the federal
government was to be of any efficiency, and a bond of union, it ought to be
invested with an unqualified power of taxation for all national purposes.1 In
the history of mankind it has ordinarily

___________________________________

1 The Federalist, No. 31; Id. No. 30; Id. No. 21.

CH. XIV.] POWERS OF CONGRESS -- TAXES. 403

been found, that in the usual progress of things the necessities of a nation
in every stage of its existence are at least equal to its resources.1 But, if a
more favourable state of things should exist in our own government, still we
must expect reverses, and ought to provide against them. It is impossible to
foresee all the various changes in the posture, relations, and power of
different nations, which might affect the prosperity and safety of our own. We
may have formidable foreign enemies. We may have internal commotions. We may
suffer from physical, as well as moral calamities; from plagues, famine, and
earthquakes; from political convulsions, and rivalries; from the gradual decline
of particular sources of industry; and from the necessity of changing our own
habits and pursuits, in consequence of foreign improvements and competitions,
and the variable nature of human wants and desires. A source of revenue
adequate in one age, may wholly or partially fail in another. Commerce, or
manufactures, or agriculture may thrive under a tax in one age, which would
destroy them in another. The power of taxation, therefore, to be useful, must
not only be adequate to all the exigencies of the nation, but it must be capable
of reaching from time to time all the most productive sources. It has been
observed with no less truth, than point, that "in political arithmetic two
and two do not always make four."2 Constitutions of government are not to
be framed upon a calculation of existing exigencies; but upon a combination of
these with the probable exigencies of ages, according to the natural and tried
course of human affairs. There ought to be a capacity to provide for future
contingencies, as they may happen; and as these are (as has been

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1 The Federalist, No. 30. 2 The Federalist, No. 21.

404 CONSTITUTION OF THE U. STATES. [BOOK III.

already suggested) illimitable in their nature, so it is impossible safely
to limit that capacity.1

§ 932. In answer to this reasoning it was objected, that "it
is not true, because the exigencies of the Union may not be susceptible of
limitation, that its power of taxation ought to be unconfined. Revenue is as
requisite to the purposes of the local administrations, as to those of the
Union; and the former are at least of equal importance with the latter to the
happiness of the people. it is, therefore, as necessary, that the state
governments should be able to command the means of supplying their wants, as
that the national government should possess the like faculty in respect to the
Wants of the Union. But an indefinite power in the latter might, and probably
would in time, deprive the former of he means of providing for their own
necessities; and would subject them entirely to the mercy of the national
legislature. As the laws of the Union are to become the supreme law of the land;
and as it is to have power to pass all laws, that may be necessary, for carrying
into execution the authorities, with which it is proposed to vest the national
government, it might at any time abolish the taxes imposed for state objects
upon the. pretence of an interference with its own. It might allege a necessity
of doing this in order to give efficacy to the national revenue; and thus all
the resources of taxation might by degrees become the subjects of federal
monopoly, to the entire exclusion and destruction of the state governments."2
The

difficulties arising from this collision between the state and national
governments might be easily avoided by a separation and distinction, as to the
subjects of taxation, or by other methods, which might be easily devised. Thus,
for instance, the general government might be entrusted with the power of
external taxation, such as laying duties and imposts on goods imported; and the
states remain exclusively in possession of the power of internal taxation. Or
power might be given to the general government to lay taxes exclusively upon
certain specified subjects; or to lay taxes, if requisitions on the states were
not complied with;1 or, if the specified subjects failed to produce an adequate
revenue, resort might be had to requisitions, or even to direct taxes, to supply
the deficiency.2

§ 933. In regard to these objections it was urged, that it was
impossible to rely (as the history of the government under the confederation
abundantly proved) upon requisitions upon the states.3 Direct taxes were
exceedingly unequal, and difficult to adjust;4 and could

not safely be relied on, as an adequate or satisfactory source of revenue,
except as a final resort, when others more eligible failed. The distinction
between external and internal taxation was indeed capable of being reduced to
practice. But in many emergencies it might leave the national government
without any adequate resources, and compel it to a course of taxation ruinous to
our trade and industry, anti the solid interests of the country. No one of due
reflection can contend, that commercial imports are, or could be equal to all
future exigencies of the Union; and indeed ordinarily they may not be found
equal to them.1 Suppose they are equal to the ordinary expenses of the Union;
yet, if war should come, the civil list must be entirely overlooked, or the
military left without any adequate supply.2 How is it possible, that a
government half supplied and half necessitous cart fulfil the purposes of its
institution, or can provide for the security, advance the prosperity, or support
the reputation of the commonwealth? How can it ever possess either energy or
stability, dignity or credit, confidence at home, or respectability abroad? How
can its administration be any thing else, than a succession of expedients,
temporary, impotent, and disgraceful? How will it be able to avoid a frequent
sacrifice of its engagements to immediate necessity? How can. it undertake, or
execute any liberal or enlarged plans of public good?3 Who would lend to a

________________________________

1 The Federalist, No. 41. See 1 Elliot's Debates, 303 to 306. 2 The
Federalist, No. 30, 34. --"A government," (said one of our most
distinguished statesmen, Mr. Ellsworth, of Connecticut, speaking on this very
subject,) "which can command but half its resources, is like a man with but
one arm to defend himself." Speech in Connecticut Convention, 7th January,
1788; 3 Amer. Museum, 338 3 The Federalist, No. 30.

CH. XIV.] POWERS OF CONGRESS -- TAXES. 407

government, incapable of pledging any permanent resources to redeem its
debts? It would be the common case of needy individuals, who must borrow upon
onerous conditions and usury, because they cannot promise a punctilious
discharge of their engagements.1 It would, therefore, not only not be wise, but
be the extreme of folly to stop short of adequate resources for all emergencies,
and to leave the government entrusted with the care of the national defence in a
state of total, or partial incapacity to provide for the protection of the
community against future invasions of the public peace by foreign war, or
domestic convulsions. If, indeed, we are to try the novel, not to say absurd
experiment in politics, of tying up the hands of government from protective and
offensive war, rounded upon reasons of state, we ought certainly to be able to
compel foreign nations to abstain from all measures, which shall injure, or
cripple us.2 We must be able to repress their ambition, and disarm their
enmity; to conquer their prejudices, and destroy their rivalries and jealousies.
Who is so visionary, as to dream of such a moral influence in a republic over
the whole world? It should never be forgotten, that the chief sources of
expense in every government have ever arisen from wars and rebellions, from
foreign ambition and enmity, or from domestic insurrections and factions. And it
may well be presumed, that what has been in the past, will continue to be in the
future.

§ 934. Besides; it is manifest, that however adequate
commercial imposts. might be for the ordinary expenditures of peace, the
operations of war might, and indeed ordinarily would, if our adversary possess-

__________________________________

1 The Federalist, No. 80. 2 The Federalist, No. 34.

408 CONSTITUTION OF THE U. STATES. [BOOK III.

ed a large naval force, greatly endanger, if it did not wholly cut off our
supplies from this source.1 And if this were the sole reliance of the national
government, a naval warfare upon our commerce would, on this very account, be at
once the most successful, and the most irresistible means of subduing us, or
compelling us to sue for peace. What could Great Britain, or France do in a
naval war, if they were compelled to rely on commerce alone, as a resource for
taxation to raise armies, or maintain navies? What could America do, in a
contest with a rival power, whose navy possessed a superiority, sufficient to
blockade all her principal ports?2 And, independent of any such exigencies, the
history of the world shows, that nothing is more fluctuating and capricious than
trade. The proudest commercial nations in one age have sunk down to comparative
insignificance in another. Look at Venice, and Genoa, and the Hanse Towns, and
Holland, and Portugal, and Spain! What is their present, commercial importance;
compared with its glory, and success, in past times? Could either of them now
safely rely on imposts, as an exclusive source of revenue?

§ 935. There is another, very important view of this

__________________________________

1 3 Elliot's Debates, 290. 2 In the recent war, of 1812-1813, between Great
Britain, and the United States, we had abundant. proofs of the correctness, of
this reasoning. Notwithstanding the duties upon importations were doubled; from
the naval superiority of our enemy, our government, were compelled to resort to
direct, and internal taxes, to land taxes and excises; and even with all these
advantage, it is notorious, that the credit of the government sunk exceedingly
low, during the contest; and the public securities were bought and sold, under
the very eyes of the administration, at a discount of nearly fifty per cent,
from their nominal amount. Nay, at one time. it was impracticable to borrow any
money upon the government credit. This event. (let it be remembered,) took
place, after twenty years, of unexampled prosperity of the country. It is a
sad, but solemn admonition.

CH. XIV.] POWERS OF CONGRESS -- TAXES. 409

subject. If the power of taxation of the general government were confined to
duties on imports, it is evident, that it might be compelled, for want of other
adequate resources, to extend these duties to an injurious excess. Trade might
become embarrassed, and perhaps oppressed, so as to diminish the receipts, while
the duty was increased; smuggling, always facile; and always demoralizing in a
republic of a widely extended seacoast, would be most mischievously encouraged.1
The first effect would be, that commerce would thus gradually change its
channels; and if other interests should be (as, indeed, they might be to some
extent) aided by such exorbitant duties;the ultimate result would be a great
diminution of the revenue, and the ruin of a great branch of industry. It never
can be either politic or just, wise or patriotic, to found a government upon
principles, which in its ordinary, or even extraordinary operations, must
naturally, if not necessarily, lead to such a result. This would be, to create
a government, not for the happiness, or prosperity of the whole people; but for
oppressions, and inequalities, arising from scanty means, and inadequate powers.

§ 936. In regard to the other part of the objection, rounded
on the dangers to the state governments from this general power of taxation, it
is wholly without any solid foundation. It assumes, that the national
government will have an interest to oppress or destroy the state governments; a
supposition, wholly inadmissible in principle, and unsupported by fact. There is
quite as much reason to presume, that there will be a disposition in the state
governments to encroach on that of the union.2 In truth, no reasoning,

_________________________________

1 The Federalist, No. 35. 2 The Federalist, No. 31.

410 CONSTITUTION OF THE U. STATES. [BOOK III.

founded exclusively on either ground, is safe, or satisfactory. There ought
to be power in each government to maintain itself, and execute its own powers;
but it does not necessarily follow, that either would. become dangerous to the
other. The objection, indeed, is rather aimed at the structure, and
organization of the government, than at its powers; since it is impossible, if
the structure and organization be reasonably skilful, that any usurpation or
oppression can take place.1

§ 937. But waiving this consideration, it will at once be
seen, that the state governments have complete means of self-protection, as with
the sole exception of duties on imports and exports, (which the constitution has
taken from the states, unless it is exercised by the consent of congress,) the
power of taxation remains in the. states concurrent and co-extensive with that
of congress. The slightest attention to the subject will demonstrate this
beyond all controversy. The language of the constitution does not, in terms,
make it an exclusive power in congress; the existence of a concurrent power is
not incompatible with the exercise of it by congress; and the states are not
expressly prohibited from using it by the constitution. Under such
circumstances, the argument is irresistible, that a concurrent power remains in
the states, as a part of their original and unsurrendered sovereignty?

___________________________________

1 The Federalist, No. 31, 32. 2 The Federalist, No. 32. See Gibbons v.
Ogden, 9 Wheat. R. 1, 199 to 902. 1 Kent's Comm. Lect. 18, p. 363, 367, 368,
369. -- This subject has been already considered in these Commentaries, in the
rules of interpretation of the constitution; and a very important illustration,
in the Federalist, No. 32, on this very point of taxation, was cited there. It
seems, therefore, wholly unnecessary to repeat the reasoning. See also 4
Wheaton's R. 193, 316; 5 Wheaton's R. 22, 24, 28, 45, 49; 9 Wheaton's R. 199,
210, 238; 12 Wheaton's R. 446.

CH. XIV.] POWERS OF CONGRESS -- TAXES. 411

§ 938. The remarks of the Federalist, on this point, are very full and
cogent. "There is, plain]y," says that work, "no expression, in
the granting clause, which makes that power exclusive in the Union. There is no
independent clause, or sentence, which prohibits the states from exercising it.
So far is this from being the case, that a plain and conclusive argument to the
contrary is deducible from the restraint laid upon the states, in relation to
duties on imports and exports. This restriction implies an admission, that, if
it were not inserted, the states would possess the power it excludes; and it
implies a further admission, that as to all other taxes the authority of the
states remains undiminished. In any other view, it would be both unnecessary
and dangerous. It would be unnecessary, because, if the grant to the Union of
the power of laying such duties implied the exclusion of the states, or even
their subordination in this particular, there would be no need of such a
restriction. It would be dangerous, because the introduction of it leads
directly to the conclusion, which has been mentioned, and which, if the
reasoning of the objectors be just, could not have been intended; I mean, that
the states in all cases, to which the restriction did not apply, would have a
concurrent power of taxation with the Union. The restriction in question
amounts to what lawyers call a negative pregnant; that is, a negation of one
thing, and an affirmance of another; a negation of the authority of the states
to impose taxes on imports and exports; and an affirmance of their authority to
impose them on other articles." -- "As to a supposition of repugnancy
between the power of taxation in the states, and in the Union; it cannot be
supported in that sense, which would be requisite to work

412. CONSTITUTION OF THE U. STATES. [BOOK III

an exclusion of the states. It is indeed possible, that a tax might be laid
on a particular article by a state, which might render it inexpedient, that a
further tax should be laid on the same article by the Union. But it would not
imply a constitutional inability to impose a further tax. The quantity of the
imposition, the expediency of an increase, on either side, would be mutually
questions of prudence; but there would be involved no direct contradiction of
power. The particular policy of the national and state system of finance might,
now and then, not exactly coincide, and might require reciprocal forbearance.
It is not, however, a. mere possibility of inconvenience, in the exercise of
powers; but an immediate constitutional repugnancy, that can, by implication,
alienate and extinguish a preexisting right of sovereignty."1

§ 939. It is true, that the laws of the Union are to be
supreme. But, without this, they would amount to nothing. It may be admitted,
that a law, laying a tax for the use of the United States, would be supreme in
its nature, and legally uncontrollable. Yet a law, abrogating a state tax, or
preventing its collection, would be as clearly unconstitutional; and, therefore,
not the supreme law. As far as an improper accumulation of taxes on the same
thing. might tend to render the collection difficult, or precarious, it would be
a mutual inconvenience, not arising from superiority, or defect of, power on
either side, but from an injudicious exercise of it.2

§ 940. The states, with this concurrent power, will be entirely safe,
and have ample resources to meet all their wants, whatever they may be, although
few public expenses, comparatively speaking, will fail to their lot to provide
for. They will be chiefly of a domestic character, and affecting internal
polity; whereas, the resources of the Union will cover the vast expenditures,
occasioned by foreign intercourse, wars, and other charges necessary for the
safety and prosperity of the Union. The mere civil list of any country is
always small; the expenses of armies, and navies, and foreign relations
unavoidably great. There is no sound reason, why the states should possess any
exclusive power over sources of revenue, not required by their wants. But there
is the most urgent propriety in conceding to .the Union all, which may be
commensurate by their wants. Any attempt to discriminate between the sources of
revenue would leave too much, or too little to the states. If the exclusive
power of external taxation were given to the Union, and of external taxation to
the states, it would, at a rough calculation, probably give to the states a
command of two thirds of the resources of the community, to defray from a tenth
to a twentieth of its expenses; and to the Union, one third of the resources of
the community, to defray from nine tenths to nineteen twentieths of its
expenses. Such an unequal distribution is wholly indefensible. And it may be
added, that the resources of the Union would, or might be diminished exactly in
proportion to the increase of demands upon its treasury; for (as has been
already seen) war, which brings the great expenditures, narrows, or at least may
narrow the resources of taxation from duties on imports to a very alarming
degree. If we enter any other line of discrimination, it

414 CONSTITUTION OF THE U. STATES. [BOOK III.

will be equally difficult to adjust the proper proportions; for the inquiry
itself, in respect to the future wants, as well of the states, as of the Union,
and their relative proportion, must involve elements, for ever changing, and
incapable of any precise ascertainment. Too much, or too little would for ever
be found to belong to the states; and the states, as well as the Union, might be
endangered by the very precautions to guard against abuses of power.1 Any
separation of the subjects of revenue, which could have been fallen upon, would
have amounted to a sacrifice of the interests of the Union to the power of the
individual states; or of a surrender of important functions by the latter, which
would have removed them to a mean provincial servitude, and dependence.2

§ 941. Other objections of a specious character were urged
against confiding to congress a general power of taxation. Among these, none
were insisted on with more frequency, and earnestness, than the incapacity of
congress to judge of the proper subjects of taxation, considering the
diversified interests, and pursuits of the states, and the impracticability of
representing in that body all their interests and pursuits.3 The principal
pressure of this argument has been already examined, in the survey already taken
of the

structure and organization of the senate, and house of Representatives. In
truth, if it has any real force, or efficacy, it is an argument against any
national government, having any efficient national powers; and it is not
necessary to repeat the reasoning, on which the expediency, or necessity of such
a government has been endeavoured to be demonstrated. And, in respect to the
particular subject of taxation, there is quite as much reason to suppose, that
there will be an adequate assemblage of experience, knowledge, skill, and
wisdom, in congress, and as adequate means of ascertaining the proper bearing of
all taxes, whether direct, or indirect, whether affecting agriculture, commerce,
or manufactures, as to discharge any other functions delegated to congress. To
suppose otherwise, is to suppose the Union impracticable, or mischievous.1

§ 949. Other objections were raised on the ground of the
multiplied means of influence in the national government, growing out of the
appointments to office, necessary in the collection of the revenues; the host of
officers, which would swarm over the land, like locusts, to devour its
substance; and the terrific oppressions, resulting from double taxes, and harsh,
and arbitrary regulations.2 These objections were answered, as well might be
supposed, by appeals to common sense, and common experience; and they are the
less necessary now to be refuted, since in the actual practice of the government
they have been proved to be visionary, and fallacious, the dreams of speculative
statesmen, indulging their love of ingenious paradoxes,

or the suggestions or fear, stimulated by discontent, or carried away by
phantoms or the imagination.1

§ 943. But another extraordinary objection, which shows, how
easily men may persuade themselves or the truth of almost any proposition, which
temporary interests or excitements induce them to believe, was urged from the
North; and it was, that the impost would be a partial tax; and that the southern
states will pay but little in comparison with the northern. It was refuted by
unanswerable reasoning;2 and would hardly deserve mention, if the opposite
doctrine had not been recently revived and propagated with abundant zeal at the
South, that duties on importations fail with the most calamitous inequality on
the southern states. Nay, it has been seriously urged, that a single southern
state is burthened. with the payment of more than half of the whole duties
levied on foreign goods throughout the Union.

§ 944. Again; it was objected, that there was no certainty,
that any duties would be laid on importations; for the southern states might
object to all imposts of this nature, as they have no manufactures of their own,
and consume more foreign goods, than the northern states; and, therefore, direct
taxes would be the common resort to supply revenue.3 To which no other answer
need be given, than, that the rule of apportionment, as well as the inequalities
of such taxes, would, undoubtedly, produce a strong disinclination in the
nation, and especially in the southern states, to resort to them, unless under
extraordinary circumstances.4

An objection, of a directly opposite character, was also taken; viz. that
the power of laying direct taxes was not proper to be granted to the national
government, because it was unnecessary, impracticable, unsafe, and accumulative
of expense.1 This objection also was shown to be unfounded; and, indeed, under
certain exigencies, which have been already. alluded to, the national government
might for want of it he utterly prostrated.2

§ 945. Other objections were urged, which it seems unnecessary
to enumerate, as they were either temporary in their nature, or were mere
auxiliaries to those already mentioned. The experience of the national
government has hitherto shown the entire safety, practicability, and even
necessity of its possessing the general power of taxation. The states have
exercised a concurrent power without obstruction or inconvenience, and enjoy
revenues adequate to all their wants; more adequate, indeed, than they could
possibly possess, if the Union were abolished, or the national government were
not vested with a general power of taxation, which enables it to provide for all
objects of common defence and general welfare. The triumph of the friends of
the constitution, in securing this great fundamental source of all real
effective national sovereignty, was most signal; and it is the noblest monument
of their wisdom, patriotism, and independence. Popular feelings, and popular
prejudices, and local interests, and the pride of state authority, and the jeal-

ousy of state sovereignty, were all against them. Yet they were not
dismayed; and by steadfast appeals to reason, to the calm sense of the people,
and to the lessons of history, they subdued opposition, and won. confidence.
Without the possession of this power, the constitution would have long since,
like the confederation, have dwindled down to an empty pageant. It would have
become an unreal mockery, deluding our hopes, and exciting our fears. It would
have flitted. before us for a moment with a pale and ineffectual light, and then
have departed for ever to the land of shadows. There is so much candour and
force in the remarks of the learned American commentator on Blackstone, on this
subject, that they deserve to be cited in this place.1 "A candid review of
this part of the federal constitution cannot fail to excite our just applause of
the principles, upon which it is founded. All the arguments against it appear to
have been drawn from the inexpediency of establishing such a form of government,
rather than from any defect in this part of the system, admitting, that a
general government was necessary to the happiness and prosperity of the states
individually. This great primary question being once decided in the
affirmative, it might be difficult to prove, that any part of the powers granted
to congress in this clause ought to have been altogether withheld: yet being
granted, rather as an ultimate provision in any possible case of emergency, than
as a means of ordinary revenue, it is to be wished, that the exercise of powers,
either oppressive in their operation, or inconsistent with the genius of the
people, or irreconcilable to their prejudices, might be reserved for cogent
occasions, which might justify the temporary recourse to a

________________________________

1 1 Tuck. Black. Comm. App. 246.

CH. XIV.] POWERS OF CONGRESS--TAXES. 419

lesser evil, as the means of avoiding one more permanent, and of greater
magnitude."

§ 946. The language of the constitution is, "Congress shall
have power to lay and collect taxes, duties, imposts, and excises," &c.
"But all duties, imposts, and excises shall be uniform throughout the
United States." A distinction is here taken between taxes, and duties,
imposts, and excises; and, indeed, there are other parts of the constitution
respecting the taxing power, (as will presently be more fully seen,) such as the
regulations respecting direct taxes, the prohibition of taxes or duties on
exports by the United States, and the prohibition of imposts or duties by the
states on imports or exports, which require an attention to this distinction.

§ 947. In a general sense, all contributions imposed by the
government upon individuals for the service of the state, are called taxes, by
whatever name they may be known, whether by the name of tribute, tythe,
talliage, impost, duty, gabel, custom, subsidy, aid, supply, excise, or other
name.1 In this sense, they are usually divided into two great classes, those,
which are direct, and those, which are indirect. Under the former denomination
are included taxes on land, or real property, and under the latter, taxes on
articles of consumption.2 The constitution, by giving the power to lay and
collect taxes in general terms, doubtless meant to include all sorts of taxes,
whether direct or indirect.3 But, it may be asked, if such was the intention,
why were the sub-

sequent words, duties, imposts and excises, added in the clause? Two
reasons may be suggested; the first, that it was done to avoid all possibility
of doubt in the construction of the clause, since, in common parlance, the word
taxes is sometimes applied in contradistinction to duties, imposts, and excises,
and, in the delegation of so vital a power, it was desirable to avoid all
possible misconception of this sort; and, accordingly, we find, in the very
first draft of the constitution, these explanatory words are added.1 Another
reason was, that the constitution prescribed different rules of laying taxes in
different cases, and, therefore, it was indispensable to make.a discrimination
between the classes, to which each rule was meant to apply.2

§ 948. The second section of the first article, which has
been already commented on for another purpose, declares, that "direct taxes
shall be apportioned among the several states, which may be included within this
Union, according to their respective numbers." The fourth clause of the
ninth section of the same article (which would regularly be commented on in a
future page) declares, that "no capitation, or other direct tax, shall be
laid, unless in proportion to the census or enumeration herein before directed
to be taken." And the clause now under consideration, that "all
duties, imposts, and excises shall be uniform throughout the United States."
Here, then, two rules are prescribed, the rule of apportionment (as it is
called) for direct taxes, and the rule of uniformity for duties, imposts, and
excises. If there are any other kinds of taxes, not embraced in one or the
other of these two classes, (and it is certainly difficult to give full effect
to

the words of the constitution without supposing them to exist,) it would
seem, that congress is left at full liberty to levy the same by either rule, or
by a mixture of both rules, or perhaps by any other rule, not inconsistent with
the general purposes of the constitution.1 It is evident, that "duties,
imposts, and excises" are indirect taxes in the sense of the constitution.
But the difficulty still remains, to ascertain1 what taxes are comprehended
under this description; and what under the description of direct taxes. It has
been remarked by Adam Smith, that the private revenue of individuals arises
ultimately from three different sources, rent, profit, and wages; and, that
every public tax must be finally paid from some one, or all of these different
sorts of revenue.2 He treats all taxes upon land, or the produce of land, or
upon houses, or parts, or appendages thereof, (such as hearth taxes and window
taxes,) under the head of taxes upon rent; all taxes upon stock, and money at
interest, upon other personal property yielding an income, and upon particular
employments, or branches of trade and business, under the head of taxes on
profits; and taxes upon salaries under the head of wages. He treats capitation
taxes and taxes on consumable articles, as mixed taxes, falling upon all or any
of the different species of revenue.3 A full consideration of these different
classifications of taxes belongs more properly to a treatise upon political
economy, than upon constitutional law.

§ 949. The word "duties" has not, perhaps, in all
cases a very exact signification, or rather it is used sometimes in a larger,
and sometimes in a narrower

sense. In its large sense, it is very nearly an equivalent to taxes,
embracing all impositions or charges levied on persons or things.1 In its more
restrained sense, it is often used as equivalent to "customs," which
appellation is usually applied to those. taxes, which are payable upon goods and
merchandise imported, or exported, and was probably given on account of the
usual and constant demand of them for the use of kings, states, and
governments.2 In this sense, it is nearly synonymous with "imposts,"
which is sometimes used in the large sense of taxes, or duties, or impositions,
and sometimes in the more restrained sense of a duty on imported goods and
merchandise.3 Perhaps it is not unreasonable to presume, that this narrower
sense might be in the minds of the framers of the constitution, when this clause
was adopted, since, in another clause, it is subsequently provided, that "No
tax or duty shall be laid on articles exported from any state;" and, that "No
state shall, without the consent of congress, lay any imposts or duties on
imports or exports, except what may be absolutely necessary for executing its
inspection laws."4 There is another provision, that "No state shall,
without the consent of congress, lay any duty of tonnage," &c.; from
which, perhaps, it may be gathered, that a tonnage duty, (by which is to be
understood, not the ancient custom in England, so called, on wines imported,5
but a duty on the ton

nage of ships and vessels,) was not deemed an impost, strictly, but a duty.
However, it must be admitted, that little certainty can be arrived at from such
slight changes of phraseology, where the words are susceptible of various
interpretations, and of more or less expansion. The most, that can be done, is,
to offer a probable conjecture from the apparent use of words in a connexion,
where it is desirable not to deem any one superfluous, or synonymous with the
others. A learned commentator has supposed, that the words, "duties and
imposts," in the constitution, were probably intended to comprehend every
species of tax or contribution, not included under the ordinary terms, "taxes
and excises."1 Another learned judge has said,2 "what is the natural
and common, or technical and appropriate, meaning of the words, duty and excise,
it is not easy to ascertain. They present no clear or precise idea to the mind.
Different persons wilt annex different significations to the terms." On
the same occasion, another learned judge said, "The term, duty is the most
comprehensive, next to the generical term, tax; and practically in Great
Britain, (whence we take our general ideas of taxes, duties, imposts, excises,
customs, &c.) embraces taxes on stamps, tolls for passage, &c. and is
not confined to taxes on importations only." 3

§ 950. "Excises" are generally deemed to be of an
opposite nature to "imposts," in the restrictive sense of the latter
term, and are defined to be an in]and imposition, paid sometimes upon the
consumption of the com-

modity, or frequently upon the retail sale, which is the last stage before
the consumption.1

§ 951. But the more important inquiry is, what are direct
taxes in the sense of the constitution, since they are required to be laid by
the rule of apportionment, and all indirect taxes, whether they fall under the
head of "duties, imposts, or excises," or under any other description,
may be laid by the rule of uniformity. It is clear, that capitation taxes,2 or,
as they are more commonly called, poll taxes, that is, taxes upon the polls,
heads, or persons, of the contributors, are direct taxes, for the constitution
has expressly enumerated them, as such. "No capitation, or other direct
tax, shall be laid," &c. is the language of that instrument.

§ 952. Taxes on lands, houses, and other permanent real
estate, or on parts or appurtenances thereof, have always been deemed of the
same character, that is, direct taxes.3 It has been seriously doubted, if, in
the sense of the constitution, any taxes are direct taxes, except those on polls
or on lands. Mr. Justice Chase, in Hylton v. United States, (3 Dall. R. 171,)
said, "I am inclined to think, that the direct taxes, contemplated by the
constitution, are only two, viz. a capitation or poll tax simply, without regard
to property, profession, or other circumstance, and a tax on land. I doubt,
whether a tax by a general assessment of personal property within the United
States is included within the term,

direct tax." Mr. Justice Patterson, in the same case, said, "It
is not necessary to determine, whether a tax on the produce of land be a direct
or an indirect tax. Perhaps the immediate product of land, in its original and
crude state, ought to be considered, as a part of the land itself. When the
produce is converted into a manufacture, it assumes a new shape, &c.;Whether
'direct taxes,' in the sense of the constitution, comprehend any other tax, than
a capitation tax, or a tax on land, is a questionable point, &c. I never
entertained a doubt, that the principal, I will not say the only, objects, that
the framers of the constitution contemplated, as falling within the rule of
apportionment, were a capitation tax and a tax on land." And he proceeded
to state, that the rule of apportionment, both as regards representatives, and
as regards direct taxes, was adopted to guard the Southern states against undue
impositions and oppressions in the taxing of slaves. Mr. Justice Iredell, in the
same case, said, "Perhaps a direct tax, in the sense of the constitution,
can mean nothing but a tax on something inseparably annexed to the soil;
something capable of apportionment under all such circumstances. A land or poll
tax may be considered of this description. The latter is to be considered so,
particularly under the present constitution, on account of the slaves in the
Southern states, who give a ratio in the representation in the proportion of
three to five. Either of these is capable of an apportionment. In regard to
other articles, there may possibly be considerable doubt." The reasoning
of the Federalist seems to lead to the same result.1

§ 953. In the year 1794, congress passed an act,2 laying
duties upon carriages for the conveyance of per

__________________________________

1 The Federalist, No. 31, 36. 2 Act of 1794, ch. 45.

426 CONSTITUTION OF THE U. STATES. [BOOK III.

sons, which were kept by or for any person, for his own use, or to be let
out to hire, or for the conveying of passengers, to wit, for every coach the
yearly sum of ten dollars, &c. &c.; and made the levy uniform throughout
the United States. The constitutionality of the act was contested, in the case
before stated,1 upon the ground, that it was a direct tax, and so ought to be
apportioned among the states. according to their numbers. After solemn
argument, the Supreme Court decided, that it was not a direct tax within the
meaning of the constitution. The grounds of this decision, as stated in the
various opinions of the judges, were; first, the doubt, whether any taxes were
direct in the sense of the constitution, but capitation and land taxes, as has
been already suggested; secondly, that in eases of doubt, the rule of
apportionment ought not to be favoured, because it was matter of compromise, and
in itself radically indefensible and wrong; thirdly, the monstrous inequality
and injustice of the carriage tax, if laid by the rule of apportionment, which
would show, that no tax of this sort could have been contemplated by the
convention, as within the rule of apportionment; fourthly, that the terms of the
constitution were. satisfied by confining the clause, respecting direct taxes,
to capitation and land taxes; fifthly, that, accurately speaking, all taxes on
expenses or consumption are indirect taxes, and a tax on carriages is of this
kind; and, sixthly, (what is probably of most cogency and force, and. of itself
decisive,) that no tax could be a direct one in the sense of the constitution,
which was not capable of apportionment according to the rule laid down in the
constitution. Thus, suppose ten dollars were contemplated as a tax on each
coach or post-chaise in the United

___________________________________

1 3 Dallas's Reports, 571.

CH. XIV.] POWERS OF CONGRESS--TAXES. 427

States, and the, number of such carriages in the United States were one
hundred and five, and the number of representatives in congress the same. This
would produce ten hundred and fifty dollars. The share of Virginia would be
19/100 parts, or $190; the share of Connecticut would be 7/100 parts, or $70.
Suppose, then, in Virginia, there are fifty carriages, the sum of $190 must be
collected from the owners of these carriages, and apportioned among them, which
would make each owner pay $380. And suppose, in Connecticut, there are but two
carriages, the share of that state ($70) must be paid by the owners of those two
carriages, viz. $35 each. Yet congress, in such a case, intend to lay a tax of
but ten dollars on each coach. And if, in any state, there should be no coach or
post-chaise owned, then, there could be no apportionment at all. The absurdity,
therefore, of such a mode of taxation demonstrates, that such a tax cannot be a
direct tax in the sense of the constitution. It is no answer to this reasoning,
that congress, having determined to raise such a sum of money, as such a tax on
carriages would produce, might apportion the sum due by the rule of
apportionment, and then order it to be collected on different articles, selected
in each state. That would be, not to lay and collect a tax on carriages, but oh
the articles, which were made contributory to the payment. Thus, the tax might
be called a tax on carriages, and levied on horses. And the same objection
would lie to an apportionment of the sum, and then a general assessment of it by
congress upon all articles.1

§ 954. Having endeavoured to point out the leading distinctions between
direct and indirect taxes, and that duties, imposts, and excises, in the sense
of the constitution, belong to the latter class, the order of the subject would
naturally lead us to the inquiry, why direct taxes are required to be governed
by the rule of apportionment; and why "duties, imposts, and excises"
are required to be uniform throughout the United States. The answer to the
former will be given, when we come to the farther examination of certain
prohibitory and restrictive clauses of the constitution on the subject of
taxation. The answer to the latter may be given in a few words. It was to cut
off all undue preferences of one state over another. in the regulation of
subjects affecting their common interests. Unless duties, imposts, and excises
were uniform, the grossest and most oppressive inequalities, vitally affecting
the pursuits and employments of the people of different states, might exist.
The agriculture, commerce, or manufactures of one state might be built up on the
ruins of those of another; and a combination of a few states in congress might
secure a monopoly of certain branches of trade and business to themselves, to
the injury, if not to the destruction, of their less favoured neighbours. The
constitution throughout all its provisions is an instrument of checks, and
restraints, as well as of powers. It does not rely on confidence in the general
government to preserve the interests of all the states. It is founded in a
wholesome and strenuous jealousy, which, foreseeing the possibility of mischief,
guards with solicitude against any exercise of power, which may endanger the
states, as far as it is practicable. If this provision, as to uniformity of
duties, had been omitted, although the power might never have been abused to the
injury of the

CH. XIV.] POWERS OF CONGRESS--TAXES. 429

feebler states of the Union, (a presumption, which history does not justify
us in deeming quite safe or certain;) yet it would, of itself, have been
sufficient to demolish, in a practical sense, the value of most of the other
restrictive clauses in the constitution. New York and Pennsylvania might, by an
easy combination with the Southern states, have destroyed the whole navigation
of New England. A combination of a different character, between the New England
and the Western states, might have borne down the agriculture of the South; and
a combination of a yet different character might have struck at the vital
interests ofmanufactures. So that the general propriety of this clause is
established by its intrinsic political wisdom, as well as by its tendency to
quiet alarms, and suppress discontents.1

§ 955. Two practical questions of great importance have
arisen upon the construction of this clause, either standing alone, or in
connexion with other clauses, and incidental powers, given by the constitution.
One is, whether the government has a right to lay taxes for any other purpose,
than to raise revenue, however much that purpose may be for the common defence,
or general welfare. The other is, whether the money, when raised, can be
appropriated to any other purposes, than such, as are pointed out in the other
enumerated powers of congress. The former involves the question, whether
congress can lay taxes to protect and encourage domestic manufactures; the
latter, whether congress can appropriate money to internal improvements. Each of
these questions has given rise to much animated controversy; each has been
affirmed and denied, with great pertinacity, zeal, and eloquent reasoning;

_________________________________

1 See 4 Elliot's Deb. 235, 236.

430 CONSTITUTION OF THE U. STATES. [BOOK III.

each has become prominent in the struggles of party; and defeat in each has
not hitherto silenced opposition, or given absolute security to victory. The
contest is often renewed; and the attack and defence maintained with equal
ardour. In discussing this subject, we are treading upon the ashes of yet
unextinguished fires, incedimus per ignes suppositos cineri doloso; -- and while
the nature of these Commentaries requires, that the doctrine should be freely
examined, as maintained on either side, the result will be left to the learned
reader, without a desire to influence his judgment, or dogmatically to announce
that belonging to the commentator.

§ 956. First, then, as to the question, whether congress can
lay taxes, except for the purposes of revenue. This subject has been already
touched, in considering what is the true reading, and interpretation of the
clause, conferring the power to lay taxes. If the reading and interpretation,
there insisted on, be correct, it furnishes additional means to resolve the
question, now under consideration.

§ 957. The argument against the constitutional authority is
understood to be maintained on the following grounds, which, though applied to
the protection of manufactures, are equally applicable to all other cases, where
revenue is not the object. The general government is one of specific powers,
and it can rightfully exercise only the powers expressly granted, and those,
which may be "necessary and proper" to carry them into effect; all
others being reserved expressly to the states, or to the people. It results
necessarily, that those, who claim to exercise a power under the constitution,
are bound to show, that it is expressly granted, or that it is "necessary
and proper," as a means to execute some of the granted powers. No such
proof has been offered in regard to the protection of manufactures.

CH. XIV.] POWERS OF CONGRESS--TAXES. 431

§ 958. It is true, that the eighth section of the first article of the
constitution authorizes congress to lay and collect an impost duty; but it is
granted, as a tax power, for the sole purpose of revenue; a power, in its
nature, essentially different from that of imposing protective, or prohibitory
duties. The two are incompatible; for the prohibitory system must end in
destroying the revenue from imports. It has been said, that the system is a
violation of the spirit, and not of the letter of the constitution. The
distinction is not material. The constitution may be as grossly violated by
acting against its meaning, as against its letter. The constitution grants to
congress the power of imposing a duty on imports for revenue, which power is
abused by being converted into an instrument for rearing up the industry of one
section of the country on the ruins of another. The violation, then, consists in
using a power, granted for one object, to advance another, and that by a
sacrifice of the original object. It is in a word a violation of perversion, the
most dangerous of all, because the most insidious and difficult to resist. Such
is the reasoning emanating from high legislative authority.1 On another
interesting occasion, the argument has been put in the following shape. It is
admitted, that congress has power to lay and collect such duties, as they may
deem necessary for the purposes of revenue, and within these limits so to
arrange those duties, as incidentally, and to that extent to give protection to
the manufacturer. But the right is denied to convert, what is here denominated

_______________________________

1 See the exposition and protest, reported by a committee of the house of
representatives, of South Carolina, on 19th of December, 1829, and adopted; the
draft of which has been attributed to Mr. Vice President Calhoun. I have
followed, as nearly as practicable, the very words of the report.

432 CONSTITUTION OF THE U. STATES. [BOOK III.

the incidental, into the principal power, and transcending the limits of
revenue, to impose an additional duty substantially and exclusively for the
purpose of affording that protection. Congress may countervail the regulations
of a foreign power, which may be hostile to our commerce; but their authority is
denied permanently to prohibit all importation, for the purpose of securing the
home market exclusively to the domestic manufacturer; thereby destroying the
commerce they were entrusted to regulate, and fostering an interest, with which
they have no constitutional power to interfere. To do so, therefore, is a
palpable abuse of the taxing power, which was conferred for the purpose of
revenue; and if it is referred to the authority to regulate commerce, it is as
obvious a perversion of that power, since it may be extended to an utter
annihilation of the objects, which it was intended to protect.1

§ 959. In furtherance of this reasoning, it has been admitted,
that under the power to regulate commerce, congress is not limited to the
imposition of duties upon imports for the sole purpose of revenue. It may
impose retaliatory duties on foreign powers; but these retaliatory duties must
be imposed for the regulation of commerce, not for the encouragement of
manufactures. The power to regulate manufactures, not having been confided to
congress, they have no more right to act upon it, than they have to interfere
with the systems of education, the poor law, or the road laws, of the states.
Congress is empowered to lay taxes for rev-

___________________________________

1 This is extracted from the address of the Free Trade Convention, at
Philadelphia, in Oct. 1831, p. 33, 34, attributed to the pen of Mr. Attorney
General Berrien. Mr. Senator Hayne, in his Speech, 9 January, 1832, says, that
he does not know, where the constitutional objections to the tariff system are
better summed up, than in this address, (p. 31, 32.)

CH. XIV.] POWERS OF CONGRESS--TAXES. 433

enue, it is true; but there is no power to encourage, protect, or meddle
with manufactures.1

§ 960. It is unnecessary to consider the argument at present,
so far as it bears upon the constitutional authority of congress to protect or
encourage manufactures; because that subject will more properly come under
review, in all its bearings, under another head, viz. the power to regulate
commerce, to which it is nearly allied, and from which it is more usually
derived. Stripping the argument, therefore, of this adventitious circumstance,
it resolves itself into this statement. The power to lay taxes is a power
exclusively given to raise revenue, and it can constitutionally be applied to no
other purposes. The application for other purposes is an abuse of the power;
and, in fact, however it may be in form disguised, it is a premeditated
usurpation of authority. Whenever money or revenue is wanted for constitutional
purposes, the power to lay taxes may be applied to obtain it. When money or
revenue is not so wanted, it is not a proper means for any constitutional end.

§ 961. The argument in favour of the constitutional authority
is grounded upon the terms and the intent of the constitution. It seeks for
the. true meaning and objects of the power according to the obvious sense of
the language, and the nature of the government proposed to be established by
that instrument. It relies upon no strained construction of words; but demands
a fair and reasonable interpretation of the clause, without any restrictions not
naturally implied in it, or in the context. It will not do to assume, that the
clause was intended solely for the purposes of raising revenue; and

then argue, that being so, the power cannot be constitutionally applied to
any other purposes. The very point in controversy is, whether it is restricted
to purposes of revenue. That must be proved; and cannot be assumed, as the
basis of reasoning.

§ 962. The language of the constitution is, "Congress
shall have power to lay and collect taxes, duties, imposts, and excises."
If the clause had stopped here, and remained in this absolute form, (as it was
in fact, when reported in the first draft in the convention,) there could not
have been the slightest doubt on the subject. The absolute power to lay taxes
includes the power in every form, in which it may be used, and for every
purpose, to which the legislature may choose to apply it. This results from the
very nature of such an unrestricted power. A fortiori it might be applied by
congress to purposes, for which nations have been accustomed to apply to it.
Now, nothing is more clear, from the history of commercial nations, than the
fact, that the taxing power is often, very often, applied for other purposes,
than revenue. It is often applied, as a regulation of commerce. It is often
applied, as a virtual prohibition upon the importation of particular articles,
for the encouragement and protection of domestic products, and industry; lot the
support of agriculture commerce, and manufactures;1 for retaliation upon foreign
monopolies and injurious restrictions;2 for mere purposes of state policy, and
domestic economy; sometimes to banish a noxious article of consumption;
sometimes, as a bounty upon an infant manufacture, or agricultural

product; sometimes, as a temporary restraint of trade; sometimes, as a
suppression of particular employments; sometimes, as a prerogative power to
destroy competition, and secure a monopoly to the government!1

§ 963. If, then, the power to lay taxes, being general, may
embrace, and in the practice of nations does embrace, all these objects, either
separately, or in combination, upon what foundation does the argument rest,
which assumes one object only, to the exclusion of all the rest? which insists,
in effect, that because revenue may be one object, therefore it is the sole
object of the power? Which assumes its own construction to be correct, because
it suits its own theory, and denies the same right to others, entertaining a
different theory? If the power is general in its terms, is it not an abuse of
all fair reasoning to insist, that it is particular? to desert the import of the
language, and to substitute other and different language? Is this allowable in
regard to any instrument? Is it allowable in an especial manner, as to
constitutions of government, growing out of the rights, duties, and exigencies
of nations, and looking to an infinite variety of circumstances, which may
require very different applications of a given power?

§ 964. In the next place, then, is the power to lay taxes,
given by the constitution, a general power; or is it a limited power? If a
limited power, to what objectsis it limited by the terms of the constitution?

§ 965. Upon this subject, (as has been already stated,) three
different opinions appear to have been held by statesmen of no common sagacity
and ability. The first is, that the power is unlimited; and that the subsequent
clause, "to pay the debts, and provide for the common defence and general
welfare," is a substan-

___________________________________

1 See Smith's Wealth of Nations, B. 5, oh. 2, art. 4.

436 CONSTITUTION OF THE U. STATES. [BOOK III.

tive, independent power. In the view of those, who maintain this opinion,
the power, being general, cannot with any consistency be restrained to purposes
of revenue.

§ 966. The next is, that the power is restrained by the
subsequent clause, so that it is a power to lay taxes in order to pay debts, and
to provide for the common defence and general welfare. Is raising revenue the
only proper mode to provide for the common defence and general welfare? May not
the general welfare, in the judgment of congress, be, in given circumstances, as
well provided for, nay better provided for, by prohibitory duties, or by
encouragements to domestic industry of all sorts? If a tax of one sort, as on
tonnage, or foreign vessels, will aid commerce, and a tax on foreign raw
materials will aid agriculture, and a tax on imported fabrics will aid domestic
manufactures, and so promote the general welfare; may they not be all
constitutionally united by congress in a law for this purpose? If congress can
unite them all, may they not sustain them severally in separate laws? Is a tax
to aid manufactures, or agriculture, or commerce, necessarily, or even
naturally, against the general welfare, or the common defence? Who is to decide
upon such a point? Congress, to whom the authority is given to exercise the
power? Or any other body, state or national, which may choose to assume it?

§ 967. Besides; if a particular act of congress, not for
revenue, should be deemed an excess of the powers; does it follow, that all
other acts are so? If the common defence or general welfare can be promoted by
laying taxes in any other manner, than for revenue, who is at liberty to say,
that congress cannot constitutionally exercise the power for such a purpose? No

CH. XIV.] POWERS OF CONGRESS--TAXES. 437

One has a right to say, that the common defence and general weifare can
never be promoted by laying taxes, except for revenue. No one has ever yet been
bold enough to assert such a proposition. Different men have entertained
opposite opinions on subjects of this nature. It is a matter of theory and
speculation, of political economy, and national policy, and not a matter of
power. It may be wise or unwise to lay taxes, except for revenue; but the
wisdom or inexpediency of a measure is no test of its constitutionality. Those,
therefore, who hold the opinion above stated, must unavoidably maintain, that
the power to lay taxes is not confined to revenue; but extends to all cases,
where it is proper to be used for the common defence and general welfare.1 One
of the most effectual means of defence against the injurious regulations and
policy of foreign nations, and which is most commonly resorted to, is to apply
the power of taxation to the products and manufactures of foreign nations by way
of retaliation; and, short of war, this is found to be practically that, which
is felt most extensively, and produces the most immediate redress. How, then,
can it be imagined for a moment, that this was not contemplated by the framers
of the Constitution, as a means to provide for the common defence and general
welfare?

§ 968. The third opinion is, (as has been already stated,)
that the power is restricted to such specific objects, as are contained in the
other enumerated powers. Now, if revenue be not the sole and exclusive means of
carrying into effect all these enumerated powers, the advocates of this doctrine
must maintain with those of the second opinion, that the power is not

limited to purposes of revenue. No man will pretend to say, that all those
enumerated powers have no other objects, or means to effectuate them, than
revenue. Revenue may be one mode; but it is not the sole mode. Take the power "to
regulate commerce." Is it not clear from the whole history of nations, that
laying taxes is one of the most usual modes of regulating commerce? Is it not;
in many cases, the best means of preventing foreign monopolies, and mischievous
commercial restrictions? In such cases, then, the power to lay taxes is
confessedly not for revenue. If so, is not the argument irresistible, that it is
not limited to purposes of revenue? Take another power, the power to coin money
and regulate its value, and that of foreign coin; might not a tax be laid on
certain foreign coin for the purpose of carrying this into effect by suppressing
the circulation of such coin, or regulating its value? Take the power to
promote the progress of science and useful arts; might not a tax be laid on
foreigners, and foreign inventions, in aid of this power, so as to suppress
foreign competition, or encourage domestic science and arts? Take another
power, vital in the estimation of many statesmen to the security of a republic,
-- the power to provide for organizing, arming, and disciplining the militia;
may not a tax be laid on foreign arms, to encourage the domestic manufacture of
arms, so as to enhance our security, and give uniformity to our organization and
discipline? Take the power to declare war, and its auxiliary powers; may not
congress, for the very object of providing for the effectual exercise of these
powers, and securing a permanent domestic manufacture and supply of powder,
equipments, and other warlike apparatus, impose a prohibitory duty upon foreign
articles of the same

CH. XIV.] POWERS OF CONGRESS--TAXES. 439

nature? If congress may, in any, or all of these cases, lay taxes; then as
revenue constitutes, upon the very basis of the reasoning, no object of the
taxes, is it not clear, that the enumerated powers require the power to lay
taxes to be more extensively construed, than for purposes of revenue? It would
be no answer to say, that the power of taxation, though in its nature only a
power to raise revenue, may be resorted to, as an implied power to carry into
effect these enumerated powers in any effectual manner. That would be to
contend, that an express power to lay taxes is not co-extensive with an implied
power to lay taxes; that when the express power is given, it means a power to
raise revenue only; but when it is implied, it no longer has any regard to this
object. How, then, is a case to be dealt with, of a mixed nature, where revenue
is mixed up with other objects in the framing of the law?

§ 969. If, then, the power to lay taxes were admitted to be
restricted to cases within the enumerated powers; still the advocates of that
doctrine are compelled to admit, that the power must be construed, as not
confined to revenue, but as extending to all other objects within the scope of
those powers. Where the power is expressly given, we are not at liberty to say,
that it is to be implied. Being given, it may certainly be resorted to, as a
means to effectuate all the powers, to which it is appropriate; not, because it
is to be implied in the grant of those powers; but because it is expressly
granted, as a substantive power, and may be used, of course, as an auxiliary to
them.1

§ 970. So that, whichever construction of the power to lay
taxes is adopted, the same conclusion is sustain-

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1 See Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828.

440 CONSTITUTION OF THE U. STATES. [BOOK III.

ed, that the power to lay taxes is not by the constitution confined to
purposes of revenue. In point of fact, it has never been limited to such
purposes by congress; and all the great functionaries of the government have
constantly maintained the.doctrine, that it was not constitutionally so
limited.1

§ 971. Such is a general summary of the reasoning on each
side, so far as it refers to the power of laying taxes. It will be hereafter
resumed in examining the nature and extent of the power to regulate commerce.

§ 972. The other questions, whether congress has any power to
appropriate money, raised by taxation or otherwise, for any other purposes, than
those pointed out in the enumerated powers, which follow the clause respecting
taxation. It is said, "raised by taxation or otherwise;" for there
may be, and in fact are, other sources of revenue, by which money may, and does
come into the treasury of the United States otherwise, than by taxation; as, for
instance, by fines, penalties, and forfeitures; by sales of the public lands,
and interests and dividends on bank stocks; by captures and prize in times of
war; and by other incidental profits and emoluments growing out of governmental
transactions and prerogatives. But, for all the common purposes of argument,
the question may be treated, as one growing out of levies by taxation.

§ 973. The reasoning, upon which the opinion, adverse to the
authority of congress to make appropria-

___________________________________

1 The present Commentaries were written before the appearance of Mr. John.
Q. Adams's Letter to Mr. Speaker Stevenson, in 1832. That Letter (as has been
already intimated) contains a very able and elaborate vindication of the power
to lay taxes, as extending to all purposes of the common defence and general
welfare. It is the fullest response to the Letter of Mr. Madison to Mr. Speaker
Stevenson, 27th Nov. 1830, which has ever yet been given.

CH. XIV.] POWERS OF CONGRESS--TAXES. 441

tions not within the scope of the enumerated powers, is maintained, has been
already, in a great measure, stared in the preceding examination of the
grammatical construction of the clause, giving the power to lay taxes.1 The
controversy is virtually at an end, if it is once admitted, that the words, "to
provide for the common defence and general welfare," are a part and
qualification of the power to lay taxes; for then, congress has certainly a
right to appropriate money to any purposes, or in any manner, conducive to those
ends. The whole stress of the argument is, therefore, to establish, that the
words, "to provide for the common defence and general welfare," do not
form an independent power, nor any qualification of the power to lay taxes. And
the argument is, that they are "mere general terms, explained and limited
by the subjoined specifications." It is attempted to be fortified (as has
been already seen) by a recurrence to the history of the confederation; to the
successive reports and alterations of the tax clause in the convention; to the
inconveniences of such a large construction; and to the supposed impossibility,
that a power to make such appropriations for the common defence and general
welfare, should not have been, at the adoption of the constitution, a subject of
great alarm, and jealousy; and as such, resisted in and out of the state
conventions.2

___________________________________

1 See Virginia Resolutions, 7th Jan. 1800; Mr. Madison's Letter to Mr.
Speaker Stevenson, 27th Nov. 1830. See also 4 Elliot's Debates, 280, 281; 2
Elliot's Debates, 344. 2 The following summary, taken from President Madison's
Veto Message on the Bank Bonus Bill for Internal Improvements, 3d March, 1817,*
contains a very clear statement of the reasoning. "To refer the power in
question," (that is, of constructing road, canals, and other internal
improvements,)" to the clause, to provide for the common defence * 4
Elliot's Debates, 280, 281.

442 CONSTITUTION OF THE U. STATES. [BOOK III.

§ 974. The argument in favour of the power is derived, in the first place,
from the language of the clause, conferring the power, (which it is admitted in
its literal terms covers it;1) secondly, from the nature of the power, which
renders it in the highest degree expedient, if not indispensable for the due
operations of the national government; thirdly, from the early, constant and
decided maintenance of it by the government and its functionaries, as well as by
many of our ablest statesmen from the very commencement of the constitution.
So, that it has the language and intent

___________________________________

and general welfare, would," says he, "be contrary to the
established rules of interpretation, as rendering the special and careful
enumeration of powers, which follow the clause, nugatory and improper. Such a
view of the constitution would have the effect of giving to congress a general
power of legislation, instead of the defined and limited one; hitherto
understood to belong to them; the terms, 'the common defence and general
welfare,' embracing every object and act within the purview of a legislative
trust. It would have the effect of subjecting both the constitution and laws of
the several states, in all cases not specifically exempted, to be superceded by
the laws of congress; it being expressly declared, that the constitution of the
United States, and the laws made in pursuance thereof, shall be the supreme law
of the land, and the judges of every state shall be bound thereby, any thing in
the constitution or laws of any state to the contrary notwithstanding. Such a
view of the constitution, finally, would have the effect of excluding the
judicial authority of the United States from its participation in guarding the
boundary between the legislative powers of the general and state governments;
inasmuch as questions relating to the general welfare, being' questions of
policy and expediency, are unsusceptible of judicial cognizance and decision. A
restriction of the power 'to provide for the common defence and general
welfare,' to cases, which are to he provided for by the expenditure of money,
would still leave within the legislative power of congress all the great and
most important measures of government, money being the ordinary and necessary
means of carrying them into execution." It will be perceived at once, that
this is the same reasoning insisted on by Mr. Madison in the Virginia Report and
Resolutions, of 7th Jan. 1800; and in his Letter to Mr. Speaker Stevenson, of
27th Nov. 1830; and by the same gentleman in the Debate on the Cod-fishery Bill,
in 1792. 4 Elliot's Debates, 236.

___________________________________

1 Mr. Madison's Letter to .Mr Speaker Stevenson, 27th Nov. 1830.

CH. XIV.] POWERS OF CONGRESS--TAXES. 443

of the text, and the practice of the government to sustain it against an
artificial doctrine, set up on the other side.

§ 975. The argument derived from the words and intent has been
so fully considered already, that it cannot need repetition. It is summed up
with great force in the report of the secretary of the treasury1 on
manufactures, in 1791. "The national legislature," says he, "has
express authority to lay and collect taxes, duties, imposts, and excises; to pay
the debts and provide for the common defence and general welfare, with no other
qualifications, than that all duties, imposts, and excises, shall be uniform
throughout the United States; that no capitation or other direct tax shall be
laid, unless in proportion to numbers ascertained by a census, or enumeration
taken on the principle prescribed in the constitution; and that no tax or duty
shall be laid on articles exported from any state. These three qualifications
excepted, the power to raise money is plenary and indefinite. And the objects,
to which it may be appropriated, are no less comprehensive, than the payment of
the public debts, and the providing for the common defence and general welfare.
The terms 'general welfare' were doubtless intended to signify more, than was
expressed or imported in those, which preceded; otherwise numerous exigencies,
incident to the affairs of the nation, would have been left without a provision.
The phrase is as comprehensive, as any, that could have been used; because it
was not fit, that the constitutional authority. of the Union to appropriate its
revenues should have been restricted within narrower limits, than the general
wel-

___________________________________

1 Mr. Hamilton.

444 CONSTITUTION OF THE U. STATES. [BOOK III.

fare; and because this necessarily embraces a vast variety of particulars,
which are susceptible neither of specification, nor of definition. It is,
therefore, of necessity left to the discretion of the national legislature to
pronounce upon the objects, which concern the general weifare, and for which,
under that description, an appropriation of money is requisite and proper. And
there seems no room for a doubt, that whatever concerns the general interests of
learning, of agriculture, of manufactures, and of commerce, are within the
Sphere of the national councils, so far as regards an application of money. The
only qualification of the generality of the phrase in question, which seems to
be admissible, is this; that the object, to which an appropriation of money is
to be made, must be general, and not local; its operation extending in fact, or
by possibility, throughout the Union, and not being confined to a particular
spot. No objection ought to arise to this construction from a supposition, that
it would imply a power to do, whatever else should appear to congress conducive
to the general weifare. A power to appropriate money with this latitude, which
is granted. in express terms, would not carry a power to do any other thing, not
authorized in the constitution either expressly, or by fair implication."1

§ 976. But the most thorough and elaborate view, which perhaps
has ever been taken of the subject, will be found in the exposition of President
Monroe, which

___________________________________

1 There is no doubt, that President Washington fully concurred in this
opinion, as his repeated recommendations to congress of objects of this sort,
especially of the encouragement of manufactures, or learning, of a university,
of new inventions, of agriculture, or commerce and navigation; of a military
academy, abundantly prove. See 5 Marshall's Life of Washington, ch. 4, p. 231,
232; 1 Wait's State Papers, 15; 2 Wait's State Papers, 109, 110, 111.

CH. XIV.] POWERS OF CONGRESS--TAXES. 445

accompanied his message respecting the bill for the repairs of the
Cumberland Road, (4th of May, 1822.) The following passage contains, what is
most direct to the present purpose; and, though long, it will amply reward a
diligent perusal. After quoting the clause of the constitution respecting the
power to lay taxes, and to provide for the common defence and general welfare,
he proceeds to say,

§ 977. "That the second part of this grant gives a right
to appropriate the public money, and nothing more, is evident from the
following. considerations: (1.) If the right of appropriation is not given by
this clause, it is not given at all, there being no other grant in the
constitution, which gives it directly, or which has any bearing on the subject,
even by implication, except the two following: first, the prohibition, which is
contained in the eleventh of the enumerated powers, not to appropriate money for
the support of armies for a longer term than two years; and, secondly, the
declaration in the sixth member or clause of the ninth section of the first
article, that no money shall be drawn from the treasury, but in consequence of
appropriations made by law. (2.) This part of the grant has node of the
characteristics of a distinct and original power. It is manifestly incidental
to the great objects of the first branch of the grant, which authorizes congress
to lay and collect taxes, duties, imposts, and excises; a power of vast extent,
not granted by the confederation, the grant of which formed one of the principal
inducements to the adoption of this constitution. If both parts of the grant
are taken together, as they must be, (for the one follows immediately after tim
other in the same sentence,) it seems to be impossible to give to the latter any
other construction, than that contended for. Con-

446 CONSTITUTION OF THE U. STATES. [BOOK III.

gress shall have power to lay and collect taxes, duties, imposts, and
excises. For what purpose? To pay the debts, and provide for the common defence
and general welfare of the United States; an arrangement and phraseology, which
clearly show, that the latter part of the clause was intended to enumerate the
purposes, to which the money thus raised might be appropriated. (3.) If this is
not the real object and fair construction of the second part of this grant, it
follows, either that it has no import or operation whatever, or one of much
greater extent, than the first part. This presumption is evidently groundless in
both instance; in the first, because no part of the constitution can be
considered as useless; no sentence or clause in it without a meaning. In the
second, because such a construction, as would make the second part of the clause
an original grant, embracing the same objects with the first, but with much
greater power than it, would be in the highest degree absurd. The order
generally observed in grants, an order founded in common sense, since it
promotes a clear understanding of their import, is to grant the power intended
to be conveyed in the most full and explicit manner; and then to explain or
qualify it, if explanation or qualification should be necessary. This order has,
it is believed, been invariably observed in all the grants contained in the
constitution. In the next place, because, if the clause in question is not
construed merely as an authority to appropriate the public money, it must be
obvious, that it conveys a power of indefinite and unlimited extent; that there
would have been no use for the special powers to raise and support armies, and a
navy; to regulate commerce; to call forth the militia; or even to lay and
collect taxes, duties, imposts, and excises. An unqualified power to pay the
debts

CH. XIV.] POWERS OF CONGRESS--TAXES. 447

and provide for the common defence and general welfare, as the second part
of this clause would be, if considered, as a distinct and separate grant, would
extend to every object, in which the public could be interested. A power to
provide for the common defence would give to congress the command of the whole
force, and of all the resources of the Union; but a right to provide for the
general welfare would go much further. It would, in effect, break down all the
barriers between the states and the general government, and consolidate the
whole under the latter.

§ 978. "The powers specifically granted to congress, are
what are called the enumerated powers, and are numbered in the order, in which
they stand; among which, that contained in the first clause holds the first
place in point of importance. If the power created by the latter part of the
clause is considered an original grant, unconnected with, and independent of,
the first, as in that case it must be; then the first part is entirely done
away, as are all the other grants in the constitution, being completely absorbed
in the transcendent power granted in the latter part. But, if the clause be
construed in the sense contended for, then every part has an important meaning
and effect; not a line, or a word, in it is superfluous. A power to lay and
collect taxes, duties, imposts, and excises, subjects to the call of congress
every branch of the public revenue, internal and external; and the addition to
pay the debts and provide for the common defence and general welfare, gives the
right of applying the money raised, that is, of appropriating it to the purposes
specified, according to a proper construction of the terms. Hence it follows,
that it is the first part of the clause only, which gives a power, which affects
in any manner the power remain

448 CONSTITUTION OF THE U. STATES. [BOOK III.

ing to the states; as the power to raise money from the people, whether it
be by taxes, duties, imposts, or excises, though concurrent in the states, as to
taxes and excises, must necessarily do. But the use or application of the money,
after it is raised, is a power altogether of a different character. It imposes
no burthen on the people, nor can it act on them in a sense to take power from
the states; or in any sense, in which power can be controverted, or become a
question between the two governments. The application of money raised under a
lawful power, is a right or grant, which may be abused. It may be applied
partially among the states, or to improper purposes in our foreign and domestic
concerns; but still it is a power not felt in the sense of other powers; since
the only complaint, which any state can make of such partiality and abuse is,
that some other state or states have obtained greater benefit from the
application, than, by a just rule of apportionment, they were entitled to. The
right of appropriation is, therefore, from its nature, secondary and incidental
to the right of raising money, and it was proper to place it in the same grant,
and same clause with that right. By finding them then in that order, we see a
new proof of the sense, in which the grant was made, corresponding with the view
herein taken of it.

§ 979. The last part of this grant, which provides, that all
duties, imposts, and excises. shall be uniform throughout the United States,
furnishes another strong proof, that it was not intended, that the second part
should constitute a distinct grant, in the sense above stated, or convey any
other right, than that of appropriation. This provision operates exclusively on
the power granted in the first part of the clause. It recites three branches of
that power -- duties, imposts, and es

CH. XIV.] POWERS OF CONGRESS--TAXES. 449

cises -- those only, on which it could operate; the rule, by which the
fourth, that is, taxes, should be laid, being already provided for in another
part of the constitution. The object of this provision is, to secure a just
equality among the states in the exercise of that power by congress. By placing
it after both the grants, that is, after that to raise, and that to appropriate
the public money, and making it apply to the first only, it shows, that it was
not intended, that the power granted in the second should be paramount to, and
destroy that granted in the first. It shows, also, that no such formidable
power, as that suggested, had been granted in the second, or any power, against
the abuse of which it was thought necessary specially to provide. Surely, if it
was deemed proper to guard a specific power, of limited extent and well known
import, against injustice and abuse, it would have been much more so, to have
guarded against the abuse of a power of such vast extent, and so indefinite, as
would have been granted, by the second part of the clause, if considered as a
distinct and original grant.

§ 980. "With this construction all the other enumerated
grants, and indeed all the grants of power contained in the constitution, have
their full operation and effect. They all stand well together, fulfilling the
great purposes intended by them. Under it we behold great scheme consistent in
all its parts, a government instituted for national purposes, vested with
adequate powers for those purposes, commencing with the most important of all,
that of revenue, and proceeding, in regular order, to the others, with which it
was deemed proper to endow it; all too drawn with the utmost circumspection and
care. How much more consistent is this construction with the great objects of
the institu

450 CONSTITUTION OF THE U. STATES. [BOOK III

tion, and with the high character of the enlightened and patriotic.
citizens, who framed it, as well as of those, who ratified it, than one, which
subverts every sound principle and rule of construction, and throws every thing
into confusion.

§ 981. "I have dwelt thus long on this part of the
subject, from an earnest desire to fix, in a clear and satisfactory manner, the
import of the second part of this grant, well knowing, from the generality of
the terms used, their tendency to lead into error. I indulge a strong hope,
that the view, herein presented, will not be without effect, but will tend to
satisfy the unprejudiced and impartial, that nothing more was granted by that
part, than a power to appropriate the public money raised under the other part.
To what extent that power may be carried, will be the next object of inquiry.

§ 982. "It is contended, on the one side, that, as the
national government is a government of limited powers, it has no right to expend
money, except in the performance of acts, authorized by the other specific
grants, according to a strict construction of their powers; that this grant, in
neither of its branches, gives to congress discretionary power of any kind; but
is a mere instrument in its hands, to carry into effect the powers contained in
the other grants. To this construction I was inclined in the more early stage
of our government; but, on further reflection and observation, my mind has
undergone a change, for reasons; which I will frankly unfold.

§ 983. "The grant consists, as heretofore observed, of a
two-fold power; the first, to raise, and the second, to appropriate the public
money; and the terms used in both instances are general and unqualified. Each

CH. XIV.] POWERS OF CONGRESS--TAXES. 451

branch was obviously drawn with a view to the other, and the import of each
tends to illustrate that of the other. The grant to raise money gives a power
over every subject, from which revenue may be drawn; and is made in the same
manner with the grants to declare war; to raise and support armies and a navy;
to regulate commerce; to establish post-offices and post roads; and with all the
other specific grants to the general government. In the discharge of the powers
contained in any of these grants, there is no other check, than that, which is
to be found in the great principles of our system -- the responsibility of the
representative to his constituents. If war, for example, is necessary, and
congress declare it for good cause, their constituents will support them in it.
A like support will be given them for the faithful discharge of their duties
under any and every other power, vested in the United States. It. affords to the
friends of our free governments the most heart felt consolation to know, and
from the best evidence,--our own experience, -- that, in great emergencies, the
boldest measures, such as form the strongest appeals to the virtue and
patriotism of the people, are sure to obtain their most decided approbation.
But should the representative act corruptly, and betray his trust, or otherwise
prove, that he was unworthy of the confidence of his constituents, he would be
equally sure to lose it, and to be removed, and otherwise censured, according to
his deserts. The power to raise money by taxes, duties, imposts, and excises,
is alike unqualified; nor do I see any check on the exercise of it, other than
that, which applies to the other powers above recited, -- the responsibility of
the representative to his constituents. Congress know the extent of the public
engagements, and the sums necessary to meet them;

452 CONSTITUTION OF THE U. STATES. [BOOK III.

they know, how much may be derived from each branch of revenue without
pressing it too far; and, paying due regard to the interests of the people, they
likewise know, which branch ought to be resorted to in the first instance. From
the commencement of the government, two branches of this power (duties and
imposts) have been in constant operation, the revenue from which has supported
the government in its various branches, and met its other ordinary engagements.
In great emergencies, the other two (taxes and excises) have likewise been.
resorted to; and neither was the right nor the policy ever called in question.

§ 984. "If we look to the second branch of this power,
that, which authorizes the appropriation of the money thus raised, we find, that
it is not less general and unqualified, than the power to raise it. More
comprehensive terms, than to 'pay the debts and provide for the common defence
and general weifare,' could not have been used. So intimately connected with,
and dependent on each other, are these two branches of power, that had either
been limited, the limitation would have had a like effect on the other. Had the
power to raise money been conditional, or restricted to special purposes, the
appropriation must have corresponded with it; for none but the money raised
could be appropriated, nor could it be appropriated to other purposes, than
those, which were permitted. On the other hand, if the right of appropriation
had been restricted to certain purposes, it would be useless and improper to
raise more, than would be adequate to those purposes. It may fairly be
inferred, that these restraints or checks have been carefully and intentionally
avoided. The power in each branch is alike broad and unqualified, and each is
drawn with peculiar fitness to the other;

CH. XIV.] POWERS OF CONGRESS--TAXES. 453

the latter requiring terms of great extent and force to accommodate the
former, which have been adopted; and both placed in the same clause and
sentence. Can it be presumed, that all these circumstances were so nicely
adjusted by mere accident? Is it not more just to conclude, that they were the
result of due deliberation and design? Had it been intended, that congress
should be restricted in the appropriation of the public money to such
expenditures, as were authorized by a rigid construction of the other specific
grants, how easy would it have been to have provided for it by a declaration to
that effect. The omission of such declaration is, therefore, an additional
proof, that it was not intended, that the grant should be so construed.

§ 985. "It was evidently impossible to have subjected
this grant, in either branch, to such restriction, without exposing the
government to very serious embarrassment. How carry it into effect? If the
grant had been made in any degree dependent upon the states, the government
would have experienced the fate of the confederation. Like it, it would have
withered, and soon perished. Had the Supreme Court been authorized, or should
any other tribunal, distinct from the government, be authorized to interpose its
veto, and to say, that more money had been raised under either branch of this
power, (that is, by taxes, duties, imposts, or excises,) than was necessary;
that such a tax or duty was useless; that the appropriation to this or that
purpose was unconstitutional; the movement might have been suspended, and the
whole system disorganized. It was impossible to have created a power within the
government, or any other power, distinct from congress and the executive, which
should control the movement of the government in this respect,

454 CONSTITUTION OF THE U. STATES. [BOOK III.

and not destroy it. Had it been declared by a clause in the constitution,
that the expenditures under this grant should be restricted to the construction,
which night be given of the other grants, such restraint, though the most
innocent, could not have failed to have had an injurious effect on the vital
principles of the government; and often on its most important measures. Those,
who might wish to defeat a measure proposed, might construe the power relied on
in support of it, in a narrow and contracted manner, and in that way fix a
precedent inconsistent with the true import of the grant. At other times, those,
who favoured a measure, might give to the rower relied on a forced or strained
construction; and, succeeding in the object, fix a precedent in the opposite
extreme. Thus it is manifest, that, if the right of appropriation be confined
to that limit, measures. may oftentimes be carried, or defeated by
Considerations and motives, altogether independent of, and unconnected with,
their merits, and the several powers of congress receive constructions equally
inconsistent with their true, import. No such declaration, however, has been
made; and from the fair import of the grant, and, indeed, its positive terms,
the inference, that such was intended, seems to be precluded.

§ 986. "Many considerations of great weight operate in
favour.of this construction while I do not perceive any serious objection to it.
If it be established, it follows, that the words, 'to provide for the common
defence and general welfare,' have a definite, safe, and useful meaning. The
idea of their forming an original grant with unlimited power, superseding every
other grant, is abandoned. They will be considered, simply; as conveying a
right of appropriation; a right indispensable to that of raising a revenue, and
necessary to ex-

CH. XIV.] POWERS OF CONGRESS--TAXES. 455

penditures under every grant. By it, as already observed, no new power will
be taken from the states, the money to be appropriated being raised under a
power already granted to congress. By it, too, the motive for giving a forced
or strained construction to any of the other specific grants will, in most
instances, be diminished, and, in many, utterly destroyed. The importance of
this consideration cannot be too highly estimated; since, in addition to the
examples already given, it ought particularly to be recollected, that, to
whatever extent any specific power may be carried, the right of jurisdiction
goes with it, pursuing it through all its incidents. The very important agency,
which this grant has in carrying into effect every other grant, is a strong
argument in favour of the construction contended for. All the other grants are
limited by the nature of the offices, which .they have severally to perform;
each conveying a power to do a certain thing, and that only; whereas this is
co-extensive with the great scheme of the government itself. It is the lever,
which raises and puts the whole machinery in motion, and continues the movement.
Should either of the other grants fail, in consequence of any condition or
limitation attached to it, or misconstruction of its powers, much injury might
follow; but still it would be the failure of one branch of power, of one item in
the system only. All the others might move on. But should the right to raise and
appropriate the public money be improperly restricted, the whole system might be
sensibly affected, if not disorganized. Each of the other grants is limited by
the nature of the grant itself. This, by the nature of the government only.
Hence, it became necessary, that, like the power to declare war, this power
should

456 CONSTITUTION OF THE U. STATES. [BOOK III.

be commensurate with the great scheme of the government, and with all its
purposes.

§ 987. "If, then, the right to raise and appropriate the
public money is not restricted to the expenditures under the other specific
grants, according to a strict construction of their powers respectively, is
there no limitation to it? Have congress a right to raise and appropriate the
public money to any, and to every purpose, according to their will and pleasure?
They certainly have not. The government of the United States is a limited
government, instituted for great national purposes, and for those only. Other
interests are committed to the states, whose duty it is to provide for them.
Each government should 'look to the great and essential purposes, for which it
was instituted, and confine itself to those purposes. A state government will
rarely, if ever, apply money to national purposes, without making it a charge to
the nation. The people of the State would not permit it. Nor will congress be
apt to apply money in aid of the state administrations, for purposes strictly
local, in which the nation at large has no interest, although the state should
desire it. The people of the other states would condemn it. They would declare,
that congress had no right to tax them for such a purpose, and dismiss, at the
next election, such of their representatives, as had voted for the measure,
especially if it should be severely felt. I do not think, that in offices of
this kind there is much danger of the two governments mistaking their interests,
or their duties. I rather suspect, that they would soon have a clear and
distinct understanding of them, and move on in great harmony."

§ 988. In regard to the practice of the government, it has
been entirely in conformity to the principles here

CH. XIV.] POWERS OF CONGRESS--TAXES. 457

laid down. Appropriations have never been limited by congress to cases
falling within the specific powers enumerated in the constitution, whether those
powers be construed in their broad, or their narrow sense. And in an especial
manner appropriations have been made to aid internal improvements of various
sorts, in our roads, our navigation, our streams, and other objects of a
national character and importance.1 In some cases, not silently, but upon
discussion, congress has gone the length of making appropriations to aid
destitute foreigners, and cities labouring under severe calamities; as in the
relief of the St. Domingo refugees, in 1794, and the citizens of Venezuela, who
suffered ,from an earthquake in 1812.2 An illustration equally forcible, of a

________________________________

1 It would be impracticable to enumerate 811 these various objects of
appropriation in detail. Many of them will be found enumerated in President
Monroe's Exposition, of 4 of May, 1822, p. 41 to 45. The annual appropriation
acts speak a very strong language on this subject Every president of the United
States, except President Madison, seems to have acted upon the same doctrine.
President Jefferson can hardly be deemed an exception. In his early opinion,
already quoted, (4 Jefferson's Corresp. 521,) he manifestly maintained it. In
his message to congress, (2 Dec. 1806,*) he seems to have denied it. In signing
the bill for the Cumberland Road, on 29th March, 1806,+ he certainly gave it a
partial sanction, as well as upon other occasions. See Mr. Monroe's Exposition,
on 4th May, 1822, p. 41. But see 4 Jefferson's Corresp. 457, where Mr.
Jefferson adopts an opposite reasoning. President Jackson has adopted it with
manifest reluctance; but he considers it as firmly established by the practice
of the government. See his veto message on the Maysville Road bill, 27 May,
18:10, 4 Elliot's Deb. 333 to 335. The opinions maintained in congress, for and
against the same doctrine, will be found in 4 Elliot's Deb. 236, 240, 265, 278,
280, 284, 291, 292, 332, 334. Report on Internal Improvements, by Mr. Hemphill,
in the house of representatives, 10 Feb. 18:11. See 1 Kent. Comm. Lect. 12, p.
250, 251 , Sergeant's Const. Law: ch. 98, p. 311 to 314; Rawle on the Const. ch.
9, p. 104; 2 United States Law Jour. April, 1826, p. 251, 264 to 282. 2 See act
of 12 Feb. 1794, ch. 2; Act of 8 May, 1812, ch. 79; 4 Elliot's Debates, 240.
* Wait's State Papers, 457, 458. + Act of 1806, ch. 19.

458 CONSTITUTION OF THE U. STATES. [BOOK III.

domestic character, is in the bounty given in the codfisheries, which was
strenuously resisted on constitutional grounds in 1792; but which still
maintains its place in the statute book of the United States.1

§ 989. No more need be said upon this subject in this place.
It will be necessarily resumed again in the discussion of other clauses of the
constitution, and especially of the powers to regulate commerce, to establish
post-offices and post-roads, and to make internal improvements.

§ 990. In order to prevent the necessity of recurring again to
the subject of taxation, it seems desirable to bring together, in this
connexion, all the remaining provisions of the constitution on this subject,
though they are differently arranged in that instrument. The first one is, "no
capitation or other direct tax shall be laid, "unless in proportion to the
census, or enumeration, herein before directed to be taken." This includes
poll taxes, and land taxes, as has been already remarked.

§ 991. The object of this clause doubtless is, to secure the
Southern states against any undue proportion of taxation; and, as nearly as
practicable, to overcome the necessary inequalities of direct tax. The South
has a very large slave population; and consequently a poll tax, which should be
laid by the rule of uniformity, would operate with peculiar severity on them.
It would tax their property beyond its supposed

_________________________________

1 See act of congress, of 16 Feb. 1792, ch. 6; 4 Elliot's Debates, 234 to
238; Act of 1813, ch. 34. See also Hamilton's Report on Manufactures, 1791,
article, Bounties. -- The Speech of the lion. Mr. Grimke, in the senate of South
Carolina, in Dec. 1828, and of the Hon. Mr. Huger, in the house of
representatives of the same state, in Dec. 1830, contain very elaborate and able
expositions of the whole subject, and will reward a diligent perusal.

CH. XIV.] POWERS OF CONGRESS--TAXES. 459

relative value, and productiveness to white labour. Hence, a rule is
adopted, which, in effect, in relation to poll taxes, exempts two fifths of all
slaves from taxation; and thus is supposed to equalize the burthen with the
white population.1

§ 992. In respect to direct taxes on land, the difficulties of
making a due apportionment, so as to equalize the burthens and expenses of the
Union according to the relative wealth and ability of the states, was felt as a
most serious evil under the confederation. By that instrument, (it will be
recollected,) the apportionment was to be among the states according to the
value of all land within each state, granted or surveyed for any person, and the
buildings and improvements thereon, to be estimated in such mode, as congress
should prescribe. The whole proceedings to accomplish such an estimate were so
operose and inconvenient, that congress, in April, 1783,2 recommended, as a
substitute for the article, an apportionment, founded on the basis of
population, adding to the whole number of white and other free citizens and
inhabitants, including those bound to service for a term of years, three fifths
of all other persons, &c. in each state; which is precisely the rule adopted
in the constitution.

§ 993. Those, who are accustomed to contemplate the
circumstances, which produce and constitute national wealth, must be satisfied,
that there is no common standard, by which the degrees of it can be ascertained.
Neither the value of lands, nor the numbers of the people, which have been
successively proposed, as the rule of

state contributions, has any pretension to being deemed a just
representative of that wealth. If we compare the wealth of the Netherlands with
that of Russia or Germany, or even of France, and at the same time compare the
total value of the lands, and the aggregate population of the contracted
territory of the former, with the total value of the lands, and the aggregate
population of the immense regions of either of the latter kingdoms, it will be
at once discovered, that there is no comparison between the proportions of these
two subjects, and that of the relative wealth of those nations. If a like
parallel be run between the American states, it will furnish a similar result.1
Let Virginia be contrasted with Massachusetts, Pennsylvania with Connecticut,
Maryland with Virginia, Rhode-Island with Ohio, and the disproportion will be at
once perceived. The wealth of neither will be found to be, in proportion to
numbers, or the value of lands.

§ 994. The truth is, that the wealth of nations depends upon
an infinite variety of causes. Situation, soil, climate; the nature of the
productions; the nature of the government; the genius of the citizens; the
degree of information they possess; the state of commerce, of arts, and
industry; the manners and habits of the people; these, and many other
circumstances, too complex, minute, and adventitious to admit of a particular
enumeration, occasion differences, hardly conceivable, in the relative opulence
and riches of different countries. The consequence is, that there can be no
common measure of national wealth; and, of course, no general rule, by which the
ability of a state to pay taxes can be determined.2 The estimate, however
fairly or

_________________________________

1 The Federalist, No. 21. 2 The Federalist, No. 21.

CH. XIV.] POWERS OF CONGRESS--TAXES. 461

deliberately made, is open to many errors and inequalities, which become the
fruitful source of discontents, controversies, and heart-burnings. These are
sufficient, in themselves, to shake the foundations of any national government,
when no common artificial rule is adopted to settle permanently the
apportionment; and every thing is left open for debate, as often as a direct tax
is to be imposed. Even in those states, where direct taxes are constantly
resorted to, every new valuation or apportionment is found, practically, to be
attended with great inconvenience, and excitements. To avoid these
difficulties, the land tax in England is annually laid according to a valuation
made in the reign of William the Third, (1692,) and apportioned among the
counties, according to that valuation.1 The gross inequality of this proceeding
cannot be disguised; for many of the counties, then comparatively poor, are now
enormously increased in wealth. What is Yorkshire or Lancashire now, with its
dense manufacturing population, compared with what it then was? Even when the
population of each state is ascertained, the mode, by which the assessment shall
be laid on the lands in the state, is a subject of no small embarrassment. It
would be gross injustice to tax each house or acre to the same amount, however
different may be its value, or however different its quality, situation, or
productiveness. And in estimating the absolute value, so much is necessarily
matter of opinion, that different judgments may, and will arrive at different
results. And in adjusting the comparative values in different counties or
towns, new elements of discord are unavoidably introduced.2 In short, it may be

affirmed without fear of contradiction, that some artificial rule of
apportionment of a fixed nature is indispensable to the public repose; and
considering the peculiar situation of the American states, and especially of the
slave and agricultural states, it is difficult to find any rule of greater
equality or justice, than that, which the constitution has adopted. And it may
be added, (what was indeed foreseen,) that direct taxes on land will not, from
causes sufficiently apparent, be resorted to, except upon extraordinary
occasions, to supply a pressing want.1 The history of the government has
abundantly established the correctness of the remark; for in a period of forty
years three direct taxes only have been laid; and those only with reference to
the state and operations of war.

§ 995. The constitution having, in another clause, declared,
that "Representatives and direct taxes shall "be apportioned among the
several states within this Union according to their respective numbers,"
and congress having, in 1815,2 laid a direct tax on the District of Columbia,
(according to the rule of apportionment,) a question was made, whether congress
had constitutionally a right to lay such a tax, the district not being one of
the states; and it was unanimously decided by the Supreme Court, that congress
had Such a right.3 It was further held, that congress, in laying a direct tax
upon the states, was not constitutionally bound to extend such tax to the
district, or the territories of the United States; but, that it was a matter for

their discretion. When, however, a direct tax is to be laid on the district
or the territories, it can be laid only by the rule of apportionment. The
reasoning, by which this doctrine is maintained, will be most satisfactorily
seen by giving it in the very words used by the court on that occasion.

§ 996. "The eighth section of the first article gives to
congress 'power to lay and collect taxes, duties, imposts, and excises,' for the
purposes thereinafter mentioned. This grant is general, without limitation as
to place. It, consequently, extends to all places, over which the government
extends. If this could be doubted, the doubt is removed by the subsequent
words, which modify the grant. These words are, 'but all duties, imposts, and
excises shall be uniform throughout the United States.' It will not be
contended, that the modification of the power extends to places, to which the
power itself does not extend. The power, then, to lay and collect duties,
imposts, and excises, may be exercised, and must be exercised throughout the
United States. Does this term designate the whole, or any particular portion of
the American empire? Certainly this question can admit of but one answer. It
is the name given to our great republic, which is composed of states and
territories. The District of Columbia, or the territory west of the Missouri,
is not less within the United States, than Maryland or Pennsylvania; and it is
not less necessary, on the principles of our constitution, that uniformity in
the imposition of imposts, duties, and excises should be observed in the one,
than in the other. Since, then, the power to lay and collect taxes, which
includes direct taxes, is obviously co-extensive with the power to lay and
collect duties, imposts, and excises, and since the latter

464 CONSTITUTION OF THE U. STATES. [BOOK III.

extends throughout the United States, it follows, that the power to impose
direct taxes also extends throughout the United States.

§ 997. "The extent of the grant being ascertained, how
far is It abridged by any part of the constitution? The twentieth section of the
first article declares, that 'representatives and direct taxes shall be
apportioned among the several states, which may be included within this Union,
according to their respective numbers.'

§ 998. "The object of this regulation is, we think, to
furnish a standard, by which taxes are to be apportioned, not to exempt from
their operation any part of our country. Had the intention been to exempt from
taxation those, who are not represented in congress, that intention would have
been expressed in direct terms. The power having been expressly granted, the
exception would have been expressly made. But a limitation can scarcely be said
to be insinuated. The words used do not mean, that direct taxes shall be
imposed on states only, which are represented, or shall be apportioned to
representatives; but that direct taxation, in its application to states, shall
be apportioned to numbers. Representation is not made the foundation of
taxation. If, under the enumeration of a representative for every 30,000 souls,
one state had been found to contain 59,000, and another 60,000, the first would
have been entitled to only one representative, and the last to two. Their
taxes, however, would not have been as one to two, but as fifty-nine to sixty.
This clause was obviously not intended to create any exemption from taxation, or
to make taxation dependent on representation, but to furnish a standard for the
apportionment of each on the states.

CH. XIV.] POWERS OF CONGRESS--TAXES. 465

§ 999. "The fourth paragraph of the ninth section of the same article
will next be considered. It is in these words: 'No capitation, or other direct
tax, shall be laid, unless in proportion to the census, or enumeration herein
before directed to be taken.'

§ 1000. "The census referred to is in that clause of the
constitution, which has just been considered, which makes numbers the standard,
by which both representatives and direct taxes shall be apportioned among the
states. The actual enumeration is to be made ' within three years after the
first meeting of the congress of the United States, and within every subsequent
term of ten years, in such manner as they shall by law direct.'

§ 1001. "As the direct and declared object of this census
is, to furnish a standard, by which 'representatives, and direct taxes, may be
apportioned among the several states, which may be included within this Union,'
it will be admitted, that the omission to extend it to the district, or the
territories, would not render it defective. The census referred to is admitted
to be a census exhibiting the numbers of the respective States. It cannot,
however, be admitted, that the argument, which limits the application of the
power of direct taxation to the population contained in this census, is a just
one. The language of the clause does not imply this restriction. It is not,
that 'no capitation, or other direct tax shall be laid, unless on those
comprehended within the census herein before directed to be taken,' but 'unless
in proportion to' that census. Now this proportion may be applied to the
district or the territories. If an enumeration be taken of the population in the
district and the territories, on the same principles, on which the enumeration
of the respective states is made, then

468 CONSTITUTION OF THE U. STATES. [BOOK III.

congress the power of exercising 'exclusive legislation in all cases
whatsoever within this district.'

§ 1007. "On the extent of these terms, according to the
common understanding of mankind, there can be no difference of opinion; but it
is contended, that they must be limited by that great principle, which was
asserted in our revolution, that representation is inseparable from taxation.
The difference between requiring a continent, with an immense population, to
submit to be taxed by a government, having no common interest with it, separated
from it by a vast ocean, restrained by no principle of apportionment, and
associated with it by no common feelings; and permitting the representatives of
the American people, under the restrictions of our constitution, to tax a part
of the society, which is either in a state of infancy advancing to manhood,
looking forward to complete equality, as soon as that state of manhood shall be
attained, as is the case with the territories; or which has voluntarily
relinquished the right of representation, and has adopted the whole body of
congress for its legitimate government, as is the case with the district; is too
obvious not to present itself to the minds of all. Although in theory it might
be more congenial to the spirit of our institutions to admit a representative
from the district, it may be doubted, whether in fact, its interests would be
rendered thereby the more secure; and certainly the constitution does not
consider its want of a representative in congress as exempting it from equal
taxation.

§ 1008. "If it were true, that, according to the spirit
of our constitution, the power of taxation must be limited by the right of
representation, whence is derived the right to lay and collect duties, imposts,
and excises, within this district? If the principles of liberty, and of

CH. XIV.] POWERS OF CONGRESS--TAXES. 469

our constitution, forbid the raising of revenue from those, who are not
represented, do not these principles forbid the raising it by duties, imposts,
and excises, as well as by a direct tax? If the principles of our revolution
give a rule applicable to this case, we cannot have forgotten, that neither the
stamp act, nor the duty on tea, were direct taxes. Yet it is admitted, that the
constitution not only allows, but enjoins the government to extend the ordinary
revenue system to this district.

§ 1009. "If it be said, that the principle of uniformity,
established in the constitution, secures the district from oppression in the
imposition of indirect taxes, it is not less true, that the principle of
apportionment, also established in the constitution, secures the district from
any oppressive exercise of the power to lay and collect direct taxes."

§ 1010. The next clause in the constitution is: "No tax
or duty shall be la id on articles exported from any state. No preference shall
be given by any regulation of commerce, or revenue, to the ports of one state
over those of another; nor shall vessels bound to, or from one state be obliged
to enter, clear, or pay duties in another."

§ 1011. The obvious object of these provisions is, to prevent
any possibility of applying the power to lay taxes, or regulate commerce,
injuriously to the interests of any one state, so as to favour or aid another.
If congress were allowed to lay a duty on exports from any one state it might
unreasonably injure, or even destroy, the staple productions, or common articles
of that state.1 The inequality of such a tax would be extreme. In some of the
states, the whole of their

___________________________________

1 Rawle on the Constitution, ch. 10, p. 115, 116.

470 CONSTITUTION OF THE U. STATES. [BOOK III.

means result from agricultural exports. In others, a great portion is
derived from ether sources; from external fisheries; from freights; and from the
profits of commerce in its largest extent. The burthen of such a tax would, of
course, be very unequally distributed. The power is, therefore, wholly taken
away to intermeddle with the subject of exports. On the other hand, preferences
might be given to the ports of one state by regulations, either of commerce or
revenue, which might confer on them local facilities or privileges in regard to
commerce, or revenue. And such preferences might be equally fatal, if
individually given under the milder form of requiring an entry, clearance, or
payment of duties in the ports of any state, other than the ports of the state,
to or from which the vessel was bound. The last clause, therefore, does not
prohibit congress from requiring an entry or clearance, or payment of duties at
the custom-house on importations in any port of a state, to or from which the
vessel is bound; but cuts off the right to require such acts to be done in other
states, to which the vessel is not bound.1 In other words, it cuts off the
power to require, that circuity of voyage, which, under the British colonial
system, was employed to interrupt the American commerce before the revolution.
No American vessel could then trade with Europe, unless through a circuitous
voyage to and from a British port.2

§ 1012. The first part of the clause was reported in the first
draft of the constitution. But it did not pass

without opposition; and several attempts were made to amend it; as by
inserting after the word "duty" the words, "for the purpose of
revenue," and by inserting at the end of it, "unless by consent of two
thirds of the legislature;" both of which propositions were negatived.1 It
then passed by a vote of seven states against four.2 Subsequently, the remaining
parts of the clause were proposed by a report of a committee, and they appear to
have been adopted without objection.3 Upon the whole, the wisdom and sound
policy of this restriction cannot admit of reasonable doubt; not so much that
the powers of the general government were likely to be abused, as that the
constitutional prohibition would allay jealousies, and confirm confidence.4 The
prohibition extends not only to exports, but to the exporter. Congress can no
more rightfully tax the one, than the other.5

§ 1013. The next clause contains a prohibition on the states
for the like objects and purposes. "No state shall, without the consent of
congress, lay any imposts, or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws; and the net produce of
all duties and imposts laid by any state on imports and exports shall be for the
use of the treasury of the United States; and all such laws shall be subject to
the revision and control of congress. No state shall, without the consent of
congress, lay any tonnage duty." In the first draft of the constitution,
the clause stood, "no state, without "the consent," &c. "shall
lay imposts or duties on im-

ports." The clause was then amended by adding, "or exports,"
not however without opposition, six states voting in the affirmative, and five
in the negative;"1 and again by adding, "nor with such consent, but
for the use of the treasury of the United States," by a vote of nine states
against two.2 In the revised draft, the clause was reported as thus amended.
The clause was then altered to its present shape by a vote of ten states against
one; and the clause, which respects the duty on tonnage, was then added by a
vote of six states against four, one being divided.3 So, that it seems, that a
struggle for state powers was constantly maintained with zeal and pertinacity
throughout the whole discussion. If there is wisdom and sound policy in
restraining the United States from exercising the power of taxation unequally in
the states, there is, at least, equal wisdom and policy in restraining the
states themselves from the exercise of the same power injuriously to the
interests of each other. A petty warfare of regulation is tim prevented, which
would rouse resentments, and create dissensions, to the ruin of the harmony and
amity of the states. The power to enforce their respective. laws is still
retained, subject to the revision and control of congress; so, that sufficient
provision is made for the convenient arrangement of their domestic and internal
trade, whenever it is not injurious to the general interests.4

§ 1014. Inspection laws are not, strictly speaking,
regulations of commerce, though they may have a

remote and considerable influence on commerce. The object of inspection
laws is to improve the quality of articles produced by the labour of a country;
to fit them for exportation, or for domestic use. These laws act upon the
subject, before it becomes an article of commerce, foreign or domestic, and
prepare it for the purpose. They form a portion of that immense mass of
legislation, which embraces every thing in the territory of a state not
surrendered to the general government. Inspection laws, quarantine laws, and
health laws, as well as laws for regulating the internal commerce of a state,
and others, which respect roads, fences, &,c. are component parts of state
legislation, resulting from the residuary powers of state sovereignty. No
direct power over these is given to congress, and consequently they remain
subject to state legislation, though they many be controlled by congress, when
they interfere with their acknowledged powers.1 Under the confederation, there
was a provision, that "no state shall lay any imposts or duties, which may
interfere with any stipulations of treaties entered into by the United States,"
&c. &c. This prohibition was notoriously (as has been already stated)
disregarded by the states ; and in the exercise by the states of their general
authority to lay imposts and duties, it is equally notorious, that the most
mischievous restraints, preferences, and inequalities existed; so, that very
serious irritations and feuds were constantly generated, which threatened the
peace of the Union, and indeed must have inevitably led to a dissolution of it.2
The power to lay duties and imposts on

imports and exports, and to lay a tonnage duty, are doubtless properly
considered a part of the taxing power; but they may also be. applied, as a
regulation. of commerce.1

§ 1015. Until a recent period, no difficulty occurred in
regard to the prohibitions of this clause. Congress, with a just liberality,
gave full effect to the inspection laws of the states, and required them to be
observed by the revenue officers of the United States.2 In the year 1821, the
state of Maryland passed an act requiring, that all importers of foreign
articles or commodities, &c. by bale or package, or of wine, rum, &c. &c.,
and other persons selling the same by wholesale, bale, or package, hogshead,
barrel, or tierce, should, before they were authorized to sell, take out a
license, for which they were to pay fifty dollars, under certain penalties.
Upon this act a question arose, whether it was, or not a violation of the
constitution of the United States, and especially of the prohibitory clause now
under consideration. Upon solemn argument, the Supreme Court decided, that it
was? The judgment of the Supreme Court, delivered on that occasion, contains a
very full exposition of the whole subject; and although it is long, it seems
difficult to abridge it without marring the reasoning, or in some measure
leaving imperfect a most important constitutional inquiry. It is, therefore,
inserted at large.

§ 1016. "The cause depends entirely on the question,
whether the legislature of a state can constitutionally require the importer of
foreign articles to take out a

license from the state, before he shall be permitted to sell a bale or
package so imported. It has been truly said, that the presumption is in favour
of every legislative act, and that the whole burthen of proof lies on those, who
deny its constitutionality. The plaintiffs in error take the burthen upon
themselves, and insist, that the act under consideration is repugnant to two
provisions in the constitution of the United States. (1.) To that, which
declares, that 'no state shall, without the consent of congress, lay any imposts
or duties on imports or exports, except what may be absolutely necessary for
executing its inspection laws.' (2.) To that, which declares, that congress
shall have power 'to regulate commerce with foreign nations, and among the
several states, and with the Indian tribes.'

§ 1017. "1. The first inquiry is, into the extent of the
prohibition upon states, 'to lay any imposts or duties on imports or exports.'
The counsel for the state of Maryland would confine this prohibition to laws
imposing duties on the act of importation or exportation. The counsel for the
plaintiffs in error give them a much wider scope. In performing the delicate
and important duty of construing clauses in the constitution of our country,
which involve conflicting powers of the government of the Union, and of the
respective states, it is proper to take a view of the literal meaning of the
words to be expounded, of their connexion with other words, and of the general
objects to be accomplished by the prohibitory clause, or by the grant of power.
What, then, is the 'meaning of the words, 'imposts or duties oft imports or
exports?' An impost or duty on imports, is a custom or a tax levied on articles
brought into a country, and is most usually secured before the importer is
allowed to exercise his rights of ownership

476 CONSTITUTION OF THE U. STATES. [BOOK III.

over them, because evasions of the law can be prevented more certainly by
executing it, while the articles are in its custody. It would not, however, be
less an impost or duty on the articles, if it were to be levied on them alter
they were landed. The policy and consequent practice of levying or securing the
duty before, or on entering the port, does not limit the power to that state of
things, nor, consequently, the prohibition, unless the true meaning of the
clause so confines it. What, then, are 'imports?' The lexicons inform us, they
are 'things imported.' If we appeal to usage for the meaning of the word, we
shall receive the same answer. They are the articles themselves, which are
brought into the country. 'A duty on imports,' then, is not merely a duty on
the act of importation, but is a duty on the thing imported. It is not, taken
in its literal sense, confined to a duty levied, while the article Is entering
the country, but extends to a duty levied after it has entered the country. The
succeeding words of the sentence, which limit the prohibition, show the extent,
in which it was understood. The limitation is, 'except what may be absolutely
necessary for executing its inspection laws.' Now, the inspection laws, so far
as they act upon articles for exportation, are generally executed on land,
before the article is put on board the vessel; so far, as they act upon
importations, they are generally executed upon articles, which are landed. The
tax or duty of inspection, then, is a tax, which is frequently, if not always,
paid for service performed on land, while the article is in the bosom of the
country. Yet this tax is an exception to the prohibition on the states to lay
duties on imports or exports. The exception was made, because the tax would
otherwise have been within the prohibition. If

CH. XIV.] POWERS OF CONGRESS--TAXES. 477

it be a rule of interpretation, to which all assent, that the exception of a
particular thing from general words proves, that in the opinion of the lawgiver,
the thing excepted would be within the general clause, had the exception not
been made, we know no reason, why this general rule should not be as applicable
to the constitution, as to other instruments. If it be applicable then this
exception in favour of duties for the support of inspection laws, goes far in
proving, that the framers of the constitution classed taxes of a similar
character with those imposed for the purposes of inspection, with duties on
imports and exports, and Supposed them to be prohibited.

§ 1018. "If we quit this narrow view of the subject, and,
passing from the literal interpretation of the words, look to the objects of the
prohibition, we find no reason for withdrawing the act under consideration from
its operation. From the vast inequality between the different states of the
confederacy, as to commercial advantages, few subjects were viewed with deeper
interest, or excited more irritation, than the manner, in which the several
states exercised, or seemed disposed to exercise, the power of laying duties on
imports. From motives, which were deemed sufficient by the statesmen of that
day, the general power of taxation, indispensably necessary, as it was, and
jealous, as the states were, of any encroachment on it, was so far abridged, as
to forbid them to touch imports or exports, with the single exception, which has
been noticed. Why are they restrained from imposing these duties? Plainly,
because, in the general opinion, the interest of all would be best promoted by
placing that whole subject under the control of congress. Whether the
prohibition to 'lay imposts, or duties on imports or ex-

478 CONSTITUTION OF THE U. STATES. [BOOK III.

ports,' proceeded from an apprehension, that the power might be so
exercised, as to disturb that equality among the states, which was generally
advantageous, or that harmony between them, which it was desirable to preserve;
or to maintain unimpaired our commercial connexions with foreign nations; or to
confer this source of revenue on the government of the Union; or, whatever other
motive might have induced the prohibition; it is plain, that the object would be
as completely defeated by a power to tax the article in the hands of the
importer, the instant it was landed, as by a power to tax it, while entering the
port. There is no difference, in effect, between a power to prohibit the sale
of an article, and a power to prohibit its introduction into the country. The
one would be a necessary consequence of the other. No goods would be imported,
if none could be sold. No object of any description can be accomplished by
laying a duty on importation, which may not be accomplished with equal certainty
by laying a duty on the thing imported in the hands of the importer. It is
obvious, that the same power, which imposes a light duty, can impose a very
heavy one, one which amounts to a prohibition. Questions of power do not depend
on the degree, to which it may be exercised. If it may be exercised at all, it
must be exercised at the will of those, in whose hands it is placed. If the tax
may be levied in this form by a state, it may be levied to an extent, which will
defeat the revenue by impost, so far, as it is drawn from importations into the
particular state.

§ 1019. We are told, that such a wild and irrational abuse of
power is not to be apprehended, and is not to be taken into view, when
discussing its existence. All power may be abused; and if the fear of its abuse
is

CH. XIV.] POWERS OF CONGRESS--TAXES. 479

to constitute an argument against its existence, it might be urged against
the existence of that, which is universally acknowledged, and which is
indispensable to the general safety. The states will never be so mad, as to
destroy their own commerce, or even to lessen it. We do not dissent from these
general propositions. We do not suppose any state would act so unwisely. But we
do not place the question on that ground. These arguments apply with precisely
the same force against the whole prohibition. It might, with the same reason be
said, that no state would be so blind to its own interests, as to lay duties on
importation, which would either prohibit, or diminish its trade. Yet the
framers of our constitution have thought this a power, which no state ought to
exercise. Conceding, to the full extent, which is required, that every state
would, in its legislation on this subject, provide judiciously for its own
interests, it cannot be conceded, that each would respect the interests of
others. A duty on imports is a tax on the article, which is paid by the
consumer. The great importing states would thus levy a tax on the non-importing
states, which would not be less a tax, because their interest would afford ample
security against its ever being so heavy, as to expel commerce from their ports.
This would necessarily produce countervailing measures on the part of those
states, whose situation was less favourable to importation. For this, among
other reasons, the whole power of laying duties on imports was, with a single
and slight exception, taken from the states. When we are inquiring, whether a
particular act is within this prohibition, the question is not, whether the
state may so legislate, as to hurt itself, but whether the act is within the
words and mischief of the prohibitory clause. It has already

480 CONSTITUTION OF THE U. STATES. [BOOK III.

been shown, that a tax on the article in the hands of the importer is within
its words; and we think it too clear for controversy, that the same tax is
within its mischief. We think it unquestionable, that such a tax has precisely
the same tendency to enhance the price of the article, as if imposed upon it,
while entering the port.

§ 1020. "The counsel for the state of Maryland insist
with great reason, that if the words of the prohibition be taken in their utmost
latitude, they will abridge the power of taxation, which all admit to be
essential to the states, to an extent, which has never yet been suspected; and
will deprive them of resources, which are necessary to supply revenue, and which
they have heretofore been admitted to possess. These words must, therefore, be
construed with some limitation; and, if this be admitted, they insist, that
entering the country is the point of time, when the prohibition ceases, and the
power of the state to tax commences. It may be conceded, that the words of the
prohibition ought not to be pressed to their utmost extent; that in our complex
system the object of the powers conferred on the government of the Union, and
the nature of the often conflicting powers, which remain in the states, must
always be taken into view, and may aid in expounding the words. of any
particular clause. But while we admit, that sound principles of construction
ought to restrain all courts from carrying the words of the prohibition beyond
the object, which the constitution is intended to secure; that there must be a
point of time, when the prohibition ceases, and the power of the state to tax
commences; we cannot admit, that this point of time is the instant, that the
articles enter the country. It is, we think, obvious, that this construction
would defeat the prohibition.

CH. XIV.] POWERS OF CONGRESS--TAXES. 481

§ 1021. "The constitutional prohibition on the states to lay a duty
on imports, a prohibition, which a vast majority of them must feel an interest
in preserving, may certainly come in conflict with their acknowledged power to
tax persons and property within their territory. The power, and the restriction
on it, though quite distinguishable, when they do not approach each other, may
yet, like the intervening colors between white and black, approach so nearly, as
to perplex the understanding, as colors perplex the vision in marking the
distinction between them. Yet the distinction exists, and must be marked, as
the cases arise. Till they do arise, it might be premature to state any rule,
as being universal in its application. It is sufficient for the present, to
say, generally, that when the importer has so acted upon the thing imported,
that it has become incorporated and mixed up with the mass of property in the
country, it has, perhaps, lost its distinctive character, as an import, and has
become subject to the taxing power of the state. But, while remaining the
property of the importer, in his warehouse, in the, original form or package, in
which it was imported, a tax upon it is too plainly a duty on imports to escape
the prohibition in the constitution.

§ 1022. "The counsel for the plaintiffs in error contend,
that the importer purchases, by payment of the duty to the United States, a
right to dispose of his merchandise, as well as to bring it into the country;
and certainly the argument is supported by strong reason, as well as by the
practice of nations, including our own. The object of importation is sale; it
constitutes the motive for paying the duties; and if the United States possess
the power of conferring the right to sell, as the consideration, for which the
duty is paid,

482 CONSTITUTION OF THE U. STATES. [BOOK III

every principle of fair dealing requites, that they should be understood to
confer it. The practice of the most commercial nations conforms to this idea.
Duties, according to that practice, are charged on those articles only, which
are intended for sale or consumption in the country. Thus, sea stores, goods
imported and re-exported in the same vessel, goods landed and carried over land
for the purpose of being re-exported from some other port, goods forced in by
stress of weather, and landed, but not for sale, are exempted from the payment
of duties. The whole course of legislation on the subject shows, that, in the
opinion of the legislature, the right to sell is connected with the payment of
duties.

§ 1093. "The counsel for the defendant in error have
endeavoured to illustrate their proposition, that the constitutional prohibition
ceases the instant the goods enter the country, by an array of the consequences,
which they suppose must follow the denial of it. If the importer acquires the
right to sellby the payment of duties, he may, they say, exert that right, when,
where, and as he pleases; and the state cannot regulate it. He may sell by
retail, at auction, or as an itinerant pedlar. He may introduce articles, as
gun-powder, which endanger a city, into the midst of its population; he may
introduce articles, which endanger the public health, and the power of
self-preservation is denied. An importer may bring in goods, as plate, for his
own use, and thus retain much valuable property exempt from taxation.

§ 1024. "These objections to the principle, if well
founded, would certainly be entitled to serious consideration. But, we think,
they will be found, on examination, not to belong necessarily to the principle,
and, conse-

CH. XIV.] POWERS OF CONGRESS--TAXES. 483

quently, not to prove, that it may not be resorted to with safety, as a
criterion, by which to measure the extent of the prohibition. This indictment
is against the importer for selling a package of dry goods in the form, in which
it was imported, without a license. This state of things is changed, if he
sells them, or otherwise mixes them with the general property of the state, by
breaking up his packages, and travelling with them, as an itinerant pedlar. In
the first case, the tax intercepts the import, as an import, in its way to
become incorporated with the general mass of property, and denies it the
privilege of becoming so incorporated, until it shall have contributed to the
revenue of the state. It denies to the importer the right of using the
privilege, which he has purchased from the United States, until he shall have
also purchased it from the state. In the last case, the tax finds the article
already incorporated with the mass of property by the act of the importer. He
has used the privilege he had purchased, and has himself mixed them up with the
common mass, and the law may treat them, as it finds them. The same observations
apply to plate, or other furniture used by the importer. So, if he sells by
auction. Auctioneers are persons licensed by the state, and if the importer
chooses to employ them, he can as little object to paying for this service, as
for any other, for which he may apply to an officer of the state. The right of
sale may very well be annexed to importation, without annexing to it, also, the
privilege of using the officers licensed by the state to make sales in a
peculiar way. The power to direct the removal of gun-powder is a branch of the
police power, which unquestionably remains, and ought to remain with the states.
If the possessor stores it himself out of town, the removal cannot be a duty on

484 CONSTITUTION OF THE U. STATES. [BOOK III.

imports, because it contributes nothing to the revenue. If he prefers
placing it in a public magazine, it is because he stores it there, in his own
opinion, more advantageously than elsewhere. We are not sure, that this may not
he classed among inspection laws. The removal or destruction of infectious or
unsound articles is, undoubtedly, an exercise of that power, and forms an
express exception to the prohibition we are considering. Indeed, the laws of
the United States expressly sanction the health laws of a state.

§ 1095. "The principle, then, for which the plaintiffs in
error contend, that the importer acquires a right, not only to bring the
articles into the country, but to mix them with the common mass of property,
does not interfere with the necessary power of taxation, which is acknowledged
to reside in the states, to that dangerous extent, which the counsel for the
defendants in error seem to apprehend. It carries the prohibition in the
constitution no farther, than to prevent the states from doing that, which it
was the great object of the constitution to prevent.

§ 1026. "But if it should be proved, that a duty on the
article itself would be repugnant to the constitution, it is still argued, that
this is not a tax upon the article, but on the person. The state, it is said,
may tax occupations, and this is nothing more. It is impossible to conceal from
ourselves, that this is varying the form, without varying the substance. It is
treating a prohibition, which is general, as if it were confined to a particular
mode of doing the forbidden thing. All must perceive, that a tax on the sale of
an article, imported only for sale, is a tax on the article itself. It is true,
the state may tax occupations generally; but this tax must be paid by those, who
employ the individual, or is a tax. on his business.

CH. XIV.] POWERS OF CONGRESS--TAXES. 485

The lawyer, the physician, or the mechanic, must either charge more on the
article, in which he deals, or the thing itself is taxed through his person.
This the state has a right to do, because no constitutional prohibition extends
to it. So, a tax on the occupation of an importer is, in like manner, a tax on
importation. It must add to the price of the article, and be paid by the
consumer, or by the importer himself, in like manner, as a direct duty on the
article itself would be made. This the state has not a right to do, because it
is prohibited by the constitution.

§ 1027. "In support of the argument, that the prohibition
ceases the instant the goods are brought into the country, a comparison has been
drawn between the opposite words, export and import. As, to export, it is said,
means only to carry goods out of the country; so, to import, means only to bring
them into it. But, suppose we extend this comparison to the two prohibitions.
The states are forbidden to lay a duty on exports, and the United States are
forbidden to lay a tax or duty on articles exported from any state. There is
some diversity in language, but none is perceivable in the act, which is
prohibited. The United States have the same right to tax occupations, which is
possessed by the states. Now, suppose the United States should require every
exporter to take out a license, for which he should pay such tax, as congress
might think proper to impose; would the government be permitted to shield itself
from the just censure, to which this attempt to evade the prohibitions of the
constitution would expose it, by saying, that this was a tax on the person, not
on the article, and that the legislature had a right to tax occupations? Or,
suppose revenue cutters were to be stationed off the coast for the purpose of
levying a duty

486 CONSTITUTION OF THE U. STATES. [BOOK III.

on all merchandise found in vessels, which were leaving the United States
for foreign countries, would it be received, as an excuse for this outrage, were
the government to say, that exportation meant no more than carrying goods out of
the country, and as the prohibition to lay a tax on imports, or things imported,
ceased the instant they were brought into tim country, so the prohibition to tax
articles exported ceased, when they were carried out or the country?

§ 1028. "We think, then, that the act, under which the
plaintiffs in error were indicted, is repugnant to that article of the
constitution, which declares, that 'no state shall lay any impost or duties on
imports or exports.' "1

§ 1029. As the power of taxation exists in the states
concurrently with the United States, subject only to the restrictions imposed by
the constitution, several questions have from time to time arisen in regard to
the nature and extent of the state power of taxation.

§ 1030. In the year 1818, the state of Maryland passed an act,
laying a tax on all banks, and branches thereof, not chartered by the
legislature of that state; and a question was made, whether the state had a
right under that act, to lay a tax on the Branch Bank of the United States in
that state. This gave rise to a most animated discussion in the Supreme Court
of the United States; where it was finally decided, that the tax was, as to the
Bank of the United States, unconstitutional.2 The reasoning of the Supreme
Court, on this subject, was as follows.

________________________________

1 The opinion also proceeded to declare, that the act was a violation. of
the exclusive power of congress to regulate commerce. But the examination of
this part of the question properly belongs to another head. 2 M'Culloch v.
State of Maryland, 4 Wheat. R. 316; 1 Kent's Comm. Lect. 19, p. 398; Id. 401.

CH. XIV.] POWERS OF CONGRESS--TAXES. 487

§ 1031. "Whether the state of Maryland may, without violating the
constitution, tax that branch? That the power of taxation is one of vital
importance; that it is retained by the states; that it is not abridged by ,the
grant of a similar power to the government of the Union; that it is to be
concurrently exercised by the two governments: are truths, which have never been
denied. But, such is the paramount character of the constitution, that its
capacity to withdraw any subject from the action of oven this power is admitted.
The states are expressly forbidden to lay any duties on imports or exports,
except what may be absolutely necessary for executing their inspection laws. If
the obligation of this prohibition must be conceded; if it may restrain a state
from the exercise of its taxing power on imports and exports; the same paramount
character would seem to restrain, as it certainly may restrain, a state from
such other exercise of this power, as is in its nature incompatible with, and
repugnant to, the constitutional laws of the Union. A law, absolutely repugnant
to another, as entirely repeals that other, as if express terms of repeal were
used.

§ 1032. "On this ground the counsel for the bank place
its claim to be exempted from the power of a state to tax its operations. There
is no express provision for the case; but the claim has been sustained on a
principle, which so entirely pervades the constitution; is so intermixed with
the materials, which compose it; so interwoven with its web, so blended with its
texture, as to be incapable of being separated from it without rending it into
shreds. This great principle is, that the constitution and the laws made in
pursuance thereof are supreme; that they control the constitution and laws of
the respective states, and cannot be controlled by them.

488 CONSTITUTION OF THE U. STATES. [BOOK III.

From this, which may be almost termed an axiom, other propositions are
deduced, as corollaries, on the truth or error of which, and on their
application to this case, the cause has been supposed to depend. These are,
1st. that a power to create. implies a power to preserve. 2nd. That a power to
destroy, if wielded by a different hand, is hostile to, and, incompatible with
the powers to create and to preserve. 3d. That where this repugnancy exists,
that authority, which is supreme, must control, not yield to that over, which it
is supreme. These propositions, as abstract truths, would, perhaps, never be
controverted. Their application to this case, however, has been denied; and,
both in maintaining the affirmative and the negative, a splendor of eloquence,
and strength of argument, seldom, if ever, surpassed, have been displayed.

§ 1033. "The power of congress to create, and of course
to continue, the bank, was the subject of the preceding part of this opinion;
and is no longer to be considered as questionable. That the power of taxing it
by the states may be exercised so, as to destroy it, is too obvious to be
denied. But taxation is said to be an absolute power, which acknowledges no
other limits, than those expressly prescribed in the constitution; and like
sovereign power of every other description, is trusted to the discretion of
those, who use it. But the very terms of this argument admit, that the
sovereignty of the state in the article of taxation itself, is subordinate to,
and may be controlled by, the constitution of the United States. How far it has
been controlled by that instrument, must be a question of construction. In
making this construction, no principle, not declared, can be admissible, which
would defeat the legitimate operations of a supreme government. It is of the
very essence of

CH. XIV.] POWERS OF CONGRESS--TAXES. 489

supremacy to remove all obstacles to its action within its own sphere, and
so to modify every power vested in subordinate governments, as to exempt its own
operations from their own influence. This effect need not be stated in terms.
It is so involved in the declaration of supremacy, so necessarily implied in it,
that the expression of it could not make it more certain. We must, therefore,
keep it in view, while construing the constitution.

§ 1034. "The argument, on the part of the state of
Maryland, is, not that the states may directly resist a law of congress, but
that they may exercise their acknowledged powers upon it, and that the
constitution leaves them this right in the confidence, that they will not abuse
it. Before we proceed to examine this argument, and to subject it to the test of
the constitution, we must be permitted to bestow a few considerations on the
nature and extent of this original right of taxation, which is acknowledged to
remain with the states. It is admitted, that the power of taxing the people and
their property is essential to the very existence of government, and may be
legitimately exercised on the objects, to which it is applicable, to the utmost
extent, to which the government may choose to carry it. The only security
against the abuse of this power is found in the structure of the government
itself. In imposing a tax the legislature acts upon its constituents. This is
in general a sufficient security against erroneous and oppressive taxation. The
people of a state, therefore, give to their government a right of taxing
themselves and their property; and as the exigencies of government cannot be
limited, they prescribe no limits to the exercise of this right, resting
confidently on the interest of the legislator, and on the influence of the
constituents over

490 CONSTITUTION OF THE U. STATES. [BOOK III.

their representative, to guard them against its abuse. But the means
employed by the government of the Union have no such security; nor is the right
of a state to tax them sustained by the same theory. Those means are not given
by the people of a particular state; not given by the constituents of the
legislature, which claim the right to tax them; but by the people of all the
states. They are given by all, for the benefit of all; and upon theory, should
be subjected to that government only, which belongs to all.

§ 1035. "It may be objected to this definition, that the
power of taxation is not confined to the people and property of a state. It may
be exercised upon every object brought within its jurisdiction. This is true.
But to what source do we trace this right? It is obvious, that it is an
incident of sovereignty, and is co-extensive with that, to which it is an
incident. All subjects, over which the sovereign power of a state extends, are
objects of taxation; but those, over which it does not extend, are, upon the
soundest principles, exempt from taxation. This proposition may almost be
pronounced self-evident. The sovereignty of a state extends to every thing,
which exists by its own authority, or is introduced by its permission; but does
it extend to those means, which are employed by congress to carry into execution
powers conferred on that body by the people of the United States? We think it
demonstrable, that it does not. Those powers are not given by the people of a
single state. They are given by the people of the United States to a
government, whose laws, made in pursuance of the constitution, are declared to
be supreme. Consequently, the people of a single state cannot confer a
sovereignty, which will extend over them.

CH. XIV.] POWERS OF CONGRESS--TAXES. 491

§ 1036. "If we measure the power of taxation residing in a state, by
the extent of sovereignty, which the people of a single state possess, and can
confer on, its government, we have an intelligible standard, applicable to every
case, to which the power may be applied. We have a principle, which leaves the
power of taxing the people and property of a state unimpaired; which leaves to a
state the command of all its resources; and which places beyond its reach all
those powers, which are conferred by the people of the United States on the
government of the Union, and all those means, which are given for the purpose of
carrying those powers into execution. We have a principle, which is safe for
the states, and safe for the Union. We are relieved, as we ought to be, from
clashing sovereignty; from interfering powers; from a repugnancy between a right
in one government to pull down, what there is an acknowledged right in another
to build up; from the incompatibility of a right in one government to destroy,
what there is a right in another to preserve. We are not driven to the
perplexing inquiry, so unfit for the judicial department, what degree of
taxation is the legitimate use, and what degree may amount to the abuse of the
power. The attempt to use it on the means employed by the government of the
Union, in pursuance of the constitution, is itself an abuse, because it is the
usurpation of a power, which the people of a single state cannot give.

§ 1037. "We find, then, on just theory, a total failure
of this original right to tax the means employed by the government of the Union,
for the execution of its powers. The right never existed; and the question,
whether it has been surrendered, cannot arise.

§ 1038. "But waiving this theory for the present, let

492 CONSTITUTION OF THE U. STATES. [BOOK III.

us resume the inquiry, whether this power can be exercised by the respective
states, consistently with a fair construction of the constitution? That the
power to tax involves the power to destroy; that the power to destroy may
defeat, and render useless the power to create; that there is a plain repugnance
in conferring on one government a power to control the constitutional measures
of another, which other, with respect to those very measures, is declared to be
supreme over that, which exerts the control, are propositions not to be denied.
But all inconsistencies are to be reconciled by the magic of the word
confidence. Taxation, it is said, does not necessarily and unavoidably destroy.
To carry it to the excess of destruction would be an abuse, to presume which,
would banish that confidence, which is essential to all government. But is this
a case of confidence? Would the people of any one state trust those of another
with a power to control the most insignificant operations of their state
government? We know they would not. Why, then, should we suppose, that the
people of any one state would be willing to trust those of another with a power
to control the operations of a government, to which they have confided their
most important and most valuable interests? In the legislature of the Union
alone are all represented. The legislature of the Union alone, therefore, can
be trusted by the people with the power of controlling measures, which concern
all, in the confidence, that it will not be abused. This, then, is not a case of
confidence, and we must consider it, as it really is.

§ 1039. "If we apply the principle, for which the state
of Maryland contends, to the constitution generally, we shall find it capable of
changing totally the character of that instrument. We shall find it capable of
arresting

CH. XIV.] POWERS OF CONGRESS--TAXES. 493

all the measures of the government, and of prostrating it, at the foot of
the states. The American people have declared their constitution, and the laws
made in pursuance thereof, to be supreme; but this principle would transfer the
supremacy, in fact, to the states. If the states may tax one instrument,
employed by the government in the execution of its powers, they may tax any, and
every other instrument. They may tax the mall; they may tax the mint; they may
tax patent rights; they may tax the papers of the custom-house; they may tax
judicial process; they may tax all the means employed by the government, to an
excess, which would defeat all the ends of government. This was not intended by
the American people. They did not design to make their government dependent on
the states. Gentlemen say, they do not c]alto the right to extend statetaxation
to these objects. They limit their pretensions to property. But on what
principle is this distinction made? Those, who make it, have furnished no
reason for it; and the principle, for which they contend, denies it. They
contend, that the power of taxation has no other limit, than is found in the
loth section of the 1st article of the constitution; that, with respect to every
thing else, the power of the states is supreme, and admits of no control. If
this be true, the distinction between property and other subjects, to which the
power of taxation is applicable, is merely arbitrary, and can never be
sustained. This is not all If the controlling power of the states be
established; if their supremacy, as to taxation, be acknowledged; what is to
restrain their exercising this control, in any shape they may please to give it?
Their sovereignty is not confined to taxation. This is not the only mode, in
which it might be displayed. The question is, in truth,

494 CONSTITUTION OF THE U. STATES. [BOOK III.

a question of supremacy; and if the right of the states to tax the means
employed by the general government be conceded, the declaration, that
the.constitution, and the laws made in pursuance thereof, shall be the supreme
law of the land, is empty and unmeaning declamation."

§ 1040. "It has also been insisted, that, as the power of
taxation in the general and state governments, is acknowledged to be concurrent,
every argument, which would sustain the right of the general government to tax
banks, chartered by the states, will equally sustain the right of the states to
tax banks, chartered by the general government. But, the two cases are not on
the same reason. The people of all the states have created the general
government, and have conferred upon it the general power of taxation. The
people of all the states, and the states themselves, are represented in
congress, and, by their representatives, exercise this power. When they tax the
chartered institutions of the states, they tax their constituents; and these
taxes must be uniform. But, when a state taxes the operations of the government
of the United States, it acts upon institutions created, not by their own
constituents, but by people, over whom they claim no control. It acts upon the
measures of a government, created by others, as well as themselves, for the
benefit of others in common with themselves. The difference is, that, which
always exists, and always must exist, between the action of the whole on a part,
and the action of a part on the whole; between the laws of a government declared
to be supreme, and those of a government, which, when in opposition to those
laws, is not supreme. But if the full application of this argument could be
admitted, it might bring into question the

CH. XIV.] POWERS OF CONGRESS--TAXES. 495

right of congress to tax the state banks, and could not prove the right of
the states to tax the bank of the United States.

§ 1041. "The court has bestowed on this subject its most
deliberate consideration. The result is a conviction, that the states have no
power, by taxation or otherwise, to retard, impede, burden, or in any manner
control, the operations of the constitutional laws enacted by congress, to carry
into execution the powers vested in the general government. This is, we think,
the unavoidable consequence of that supremacy, which the constitution has
declared. We are unanimously of opinion, that the law passed by the legislature
of Maryland, imposing a tax on the bank of the United States, is
unconstitutional and void."1

§ 1049. In another case the question was raised, whether a
state had a constitutional authority to tax stock issued for loans to the United
States; and it was held by the Supreme Court, that a state had not.2 The
reasoning of the court was as follows. "Is the stock, issued for loans made
to the government of the United States, liable to be taxed by states and
corporations? Congress has power, 'to borrow money on the credit of the United
States.' The stock it issues is the evidenceof a debt created by the exercise
of this power. The tax in question is a tax upon the contract, subsisting
between the government and the individual. It bears directly upon that contract,
while subsisting,

________________________________

1 The doctrine was again re-examined by the Supreme Court in a later case,
and deliberately re-affirmed; Osborn v. Bank of the United States, 9 Wheat. R.
738, 859 to 868; 1 Kent's Comm. Lect. 12, p. 235 to 239. 2 Weston v. The City
Council of Charleston, 2 Peters's R. 449.

496 CONSTITUTION OF THE U. STATES. [BOOK III.

and in full force. The power operates upon the contract; the instant it is
framed, and must imply a right to affect that contract. If the states and
corporations throughout the Union, possess the power to tax a contract for the
loan of money, what shall arrest this principle in its application to every
other contract? What measure can government adopt, which will not be exposed to
its influence?

§ 1043. "But it is unnecessary to pursue this principle,
through its diversified application to all the contracts, and to the various
operations of government. No one can be selected, which is of more vital
interest to the community, than this of borrowing money on the credit of the
United States. No power has been conferred by the American people on their
government, the free and unburthened exercise of which more deeply affects every
member of our republic. In war, when the honour, the safety, the independence
of the nation are to be defended, when all its resources are to be strained to
the utmost, credit must be brought in aid of taxation, and the abundant revenue
of peace and prosperity must be anticipated to supply the exigencies, the urgent
demands of the moment. The people, for objects the most important, which can
occur in the progress of nations, have empowered their government to make these
anticipations, 'to borrow, money on the credit of the United States.' Can any
thing be more dangerous, or more injurious, than the admission of a principle,
which authorizes every state, and every corporation in the Union, which
possesses the right of taxation, to burthen the exercise of this power at their
discretion?

§ 1044. "If the right to impose the tax exists, it. is a
right, which in its nature acknowledges no limits. It

CH. XIV.] POWERS OF CONGRESS--TAXES. 497

may be carried to any extent within the jurisdiction of the state or
corporation, which imposes it, which the will of each state and corporation may
prescribe. A power, which is given by the whole American people for their
common good; which is to be exercised at the most critical periods for the most
important purposes; on the free exercise of which the interests certainly,
perhaps the liberty, of the whole may depend; may be burthened, impeded, if not
arrested, by any of the organized parts of the confederacy.

§ 1044. "In a society, formed like ours, with one supreme
government for national purposes, and numerous state governments for other
purposes; in many respects independent, and in the uncontrolled exercise of many
important powers, occasional interferences ought not to surprise us. The power
of taxation is one of the most essential to a state, and one of the most
extensive in its operation. The attempt to maintain a rule, which shall limit
its exercise, is undoubtedly among the most delicate and difficult duties, which
can devolve on those, whose province it is to expound the supreme law of the
land in its application to the cases of individuals. This duty has more than
once devolved on this Court. In the performance of it we have considered it, as
a necessary consequence, from the supremacy of the government of the whole, that
its action in the exercise of its legitimate powers should be free and
unembarrassed by any conflicting powers in the possession of its parts; that the
powers of a state cannot, rightfully, be so exercised, as to impede and obstruct
the free course of those measures, which the government of the United States,
may rightfully adopt.

§ 1045. "This subject was brought before the Court

498 CONSTITUTION OF THE U. STATES. [BOOK III.

in the case of M'Culloch v. The State of Maryland,1 when it was thoroughly
argued, and deliberately considered. The question decided in that case bears a
near resemblance to that, which is involved in this. It was discussed at the bar
in all its relations, and examined by, the Court with its. utmost attention. We
will not repeat the reasoning, which conducted us to the conclusion thus formed;
but that conclusion was, that 'all subjects, over which the sovereign power of a
state extends, are objects of taxation; but those, over which it does
not-extend, are, upon the soundest principles, exempt from taxation.' 'The
sovereignty of a state extends to every thing, which exists by its own
authority, or is introduced by its permission;' but not 'to those means, which
are employed by congress to carry into execution powers conferred on that body
by the people of the United States.' 'The attempt to use' the power of taxation
'on the means employed by the government of the Union, in pursuance of the
constitution, is itself an abuse; because it is the usurpation of a power, which
the people of a single state cannot give.' 'The states have no power by
taxation, or otherwise, to retard, impede, burthen, or in any manner control the
operation of the constitutional laws, enacted by congress to carry into
execution the powers vested in the general government.' We retain the opinions,
which were then expressed. A contract made by the government in the exercise of
its power, to borrow money on the credit of the United States, is undoubtedly
independent of the will of any state, in which the individual, who lends, may
reside; and is undoubtedly an operation essential

___________________________________

1 4 Wheaton, 316.

CH. XIV.] POWERS OF CONGRESS--TAXES. 499

to the important objects, for which the government was created. It ought,
therefore, on the principles settled in the case of M'Culloch v. The State of
Maryland to be exempt from state taxation, and consequently from being taxed by
corporations, deriving their power from states.

§1046. "It is admitted, that the power of the government
to borrow money cannot be directly opposed; and that any law, directly
obstructing its operations, would be void. But a distinction is taken between
direct opposition, and.those measures, which may consequentially affect it; that
is, a law prohibiting loans to the United States, would be void; but a tax on
them to any amount is allowable. It is, we think, impossible not to perceive
the intimate connexion, which exists between these two modes of acting on the
subject. It is not the want of original power in an independent sovereign state,
to prohibit loans to a foreign government, which restrains the legislature from
direct opposition to those made by the United States. The restraint is imposed
by our constitution. The American people have conferred the power of borrowing
money on their government; and by making that government supreme, have shielded
its action, in the exercise of this power, from the action of the local
governments. The grant of the power is incompatible with a restraining or
controlling power; and the declaration of supremacy is a declaration, that no
such restraining or controlling power shall be exercised. The right to tax the
contract to any extent, when made, must operate upon the power to borrow, before
it is exercised, and have a sensible influence on the contract. The extent of
this influence depends on

??

500 CONSTITUTION OF THE U. STATES. [BOOK III.

the will of a distinct government. To any extent, however inconsiderable,
it is a burthen on the operations of government. It may be carried to an
extent, which will arrest them entirely.

§ 1047. "It is admitted by the counsel for the
defendants, that the power to tax stock must affect the terms, on which loans
will be made. But this objection, it is said, has no more weight, when urged
against the application of an acknowledged power to government stock, than if
urged against its application to lands sold by the United States. The
distinction is, we think, apparent. When lands are sold, no connexion remains
between the purchaser and the government. The lands purchased become a part of
the mass of property in the country, with no implied exemption from common
burthens. All lands are derived from the general or particular government, and
all lands are subject to taxation. Lands sold are in the condition of money
borrowed and repaid. Its liability to taxation, in any form it may then assume,
is not questioned. The connexion between the borrower and the lender is
dissolved. It is no burthen on loans; it is no impediment to the power of
borrowing, that the money, when repaid, loses its exemption from taxation. But a
tax upon debts due from the government stands, we think, on very different
principles from a tax on lands, which the government has sold. The Federalist
has been quoted in the argument, and an eloquent and well merited eulogy has
been bestowed on the great statesman, who is supposed to be the author of the
number, from which the quotation was made. This high authority was also relied
upon in the case of M'Culloch v. The State of Maryland, and was considered by
the Court. Without

CH. XIV.] POWERS OF CONGRESS--TAXES. 501

repeating, what was then said, we refer to it, as exhibiting our view of the
sentiments expressed on this subject by the authors of that work.

§ 1048. "It has been supposed, that a tax on stock comes
within the exceptions stated in the case of M'Culloch v. The State of Maryland.
We do not think so. The bank of the United States is an instrument, essential
to the fiscal operations of the government; and the power, which might be
exercised to its destruction, was denied. But property, acquired by that
corporation in a state, was supposed to be placed in the same condition with
property acquired by an individual. The tax on government stock is thought by
this Court to be a tax on the contract, a tax on the power to borrow money on
the credit of the United States, and consequently to be repugnant to the
constitution."

§ 1049. It is observable, that these decisions turn upon the
point, that no state can have authority to tax an instrument of the United
States, or thereby to diminish the means of the United States, used in the
exercise of powers confided to it. But there is no prohibition upon any state
to tax any bank or other corporation created by its own.authority, unless it has
restrained itself, by the charter of incorporation, from the power of taxation.1
This subject, however, will more properly fall under notice in some future
discussions. It may be added, that congress may, without doubt, tax state banks;
for it is clearly within the taxing power confided to the general government.
When congress tax the chartered institutions of the states, they tax their

______________________________

1 Providence Bank v. Billings, 4 Peters's R. 514.

own constituents; and such taxes must be uniform.1 But when a state taxes an
institution created by congress, it taxes an instrument of a superior and
independent sovereignty, not represented in the state legislature.